PENNSYLVANIA - EXPERT WITNESS (Physician as)

January 1, 2008

Pennsylvania state laws and regulations that affect your medical practice

1. What are the qualifications that Pennsylvania requires of physician expert witnesses?

(a) No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony.

(b) An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:

(2) Be engaged in or retired within the previous five years from active clinical practice or teaching.

Note: A Pennsylvania court may waive the requirements in this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.

( c ) In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician's standard of care also must meet the following qualifications:

(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsections (d) or (e).

(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).

(d) A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:

(1) The expert is trained in the diagnosis or treatment of the condition, as applicable; and

(2) The defendant physician provided care for that condition and such care was not within the physician's specialty or competence.

(e) A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.

40 P.S. § 1303.512

2. May an expert witness be paid compensation contingent on the outcome of the litigation?

Never. An attorney may not counsel or assist a witness to testify falsely, pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case (which is against public policy); but an attorney may pay the following compensation to a witness;

(a) Expenses reasonably incurred by a witness in attending or testifying;

(b) Reasonable compensation to a witness for the witness' loss of time in attending or testifying; and

( c ) A reasonable fee for the professional services of an expert witness.

Rules of Professional Conduct, Rule 3.4, 42 Pa. C.S.A.

3. What are the general recommended guidelines for physicians who act as expert witnesses?

The American College of Surgeons has adopted the following recommended qualifications:

The American College of Surgeons has also adopted the following recommended guidelines for behavior:

"Statement on the Physician Acting as an Expert Witness," by The American College of Surgeons

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.