Are Physicians Obligated to Serve as Medical Expert Witnesses?

Is there a duty for physicians to serve as medical expert witnesses? The American College of Physicians (ACP) and other groups codify in various position papers that, as members of a profession with specialized knowledge and expertise that may be needed in judicial or administrative processes, the physician does have such a duty as a part of her or his professional activities.

In the Fifth Edition of their Ethics Manual, the American College of Physicians, a major physician governing body, says: "Often, expert testimony is necessary for a court or administrative agency to understand the patient's condition, treatment, and prognosis. Physicians may be reluctant to become involved in legal proceedings because the process is unfamiliar and time-consuming. Their absence may mean, however, that legal decisions are made without the benefit of all medical facts or opinions. Without the participation of physicians, the mechanisms used to resolve many disputes may be ineffective and patients may suffer."  

The Physician Charter on Professionalism put forth in 2002 and updated yearly by the American Board of Internal Medicine states that as members of the medical profession, physicians should participate in self-regulation, and should "define and organize the educational and standard-setting process for current and future members." A commitment to professional responsibilities by physicians includes "engaging in internal assessment and accepting external scrutiny of all aspects of their professional performance."  This includes peer review, risk management, and participation, as necessary, in the medical-legal and administrative arenas as expert witnesses.

If the profession as a whole has an ethical duty to assist patients and society in the resolution of disputes, then individual physicians should do their fair share to participate in the process. They must, however, be qualified to do so and act within appropriate guidelines. 

In the role as an expert witness, the physician must have appropriate expertise in the subject matter of the case and must fully and objectively represent his or her qualifications and the medical information. According to the American College of Physicians' Guidelines for the Physician Expert Witness, qualifications include: (1) a current, valid and unrestricted state license to practice medicine; (2) certification by a recognized American board or training in a specialty or subspecialty, with experience or demonstrated competence and continuing medical education in the subject of the case; and (3) knowledge of the specialty or the subject matter of the case at the time of the alleged occurrence, giving rise to the claim and active involvement "in the clinical practice of the specialty or the subject matter of the case for 3 of the previous 5 years at the time of the testimony." Physicians should accept only noncontingent compensation for the reasonable time and expenses incurred as expert witnesses, and must understand that testimony is subject to independent peer review.

In fact, the American Medical Association (AMA) has specifically said that expert witness testimony should be considered an essential component of the practice of medicine and as such, subject to peer review and public scrutiny. The AMA also encourages American physicians to serve as expert witnesses under appropriate guidelines, as "a matter of public interest." However, the AMA states in their policy manual: "The AMA is on record that it will not tolerate false testimony by physicians and will assist state, county and specialty medical societies to discipline physicians who testify falsely by reporting its findings to the appropriate licensing authority."

Physicians have an obligation to serve as expert witnesses in their respective specialty areas, and they and their professional societies have a responsibility to ensure that they do it well. In a medical journal article, JAMA 2007:298 pg. 2907, examining the role of professional societies in reviewing physician expert testimony, the authors state that professional self-regulation furthers rather than impedes the cause of justice.

It therefore behooves all board-certified physicians as professionals and members of society to participate and contribute to the legal system in their capacity as medical expert witnesses.

Copyright © 2020 - & Dr. Barry Gustin