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Purpose or Goal of Expert Testimony
The physician must clearly understand that the role of the medical expert witness is to provide credible information which assists the court or other forum in understanding complex medical or scientific issues. Need for Ethical and Professional Guidelines Criteria or guidelines for qualifying medical or other scientific expert witnesses are sometimes inadequate and, as a result, any physician may testify as an expert witness regardless of training, experience, or demonstrated competence. It is in the public interest that occupational and environmental medicine expert testimony be competent, readily available, objective, and unbiased. To limit uninformed and possibly misleading testimony, occupational and environmental medicine expert witnesses should be qualified for their role and should follow a clear and consistent set of ethical guidelines.
The following guidelines were developed jointly by the Occupational Health Law and Policy Section, and the Committee on Ethical Practice in Occupational and Environmental Medicine of the American College of Occupational and Environmental Medicine (ACOEM) to define the recommended qualifications and behavior for the occupational and environmental physician expert witness.
Qualifications of an Expert Medical Witness
A witness who testifies authoritatively should have current experience and ongoing knowledge in the medical or scientific discipline which is the subject of his or her testimony. It should be kept in mind that expert knowledge in one field does not imply or confer expertise in all fields. A physician expert witness who offers testimony regarding issues of clinical medicine should have appropriate knowledge and experience regarding the area of clinical medicine in which they offer expert testimony. To ensure that the public obtains the benefit of testimony by medical experts with demonstrated competence, a physician who testifies as a medical expert should be certified by or have satisfactorily completed the equivalent requirements of a relevant specialty board recognized by the American Board of Medical Specialties. In addition, the expert should be qualified by training or experience to testify as an expert in the specific subject matter of the case/proceeding.
Basis of Expert Medical Testimony
The testimony of an expert medical witness should be founded on a thorough and critical review of the pertinent medical and scientific facts, available data, and relevant literature. The expert should specify whether his or her opinion is based on personal experience, specific reference to peer-reviewed literature, or generally accepted professional opinion in the specialty field.
Objectivity of Expert Medical Testimony
The medical expert witness is expected to be objective and has an ethical obligation to prevent personal relationships or bias from interfering with their medical or scientific opinion. He or she can have no direct personal or pecuniary interest in the outcome of the case, and review of the medical facts should be thorough, fair, and impartial and should not exclude any relevant information in order to create a view favoring any party.
Conduct of the Expert Medical Witness
The physician expert must demonstrate adherence to the strictest of personal and professional ethics. Truthfulness is essential, and misrepresentation of a personal theory or opinion as scientific doctrine may be harmful to individual parties, the profession, and the public. The physician shall testify honestly, fully, and impartially to his or her qualifications regarding the medical or other scientific issues involved in the case. The medical expert must strive to avoid even the slightest appearance of impropriety or partiality. The physician has an ethical responsibility to fully disclose competing relationships that may result or appear to result in a conflict of interest. The expert must conduct him or herself with professional decorum and avoid personal attacks, insults, or deprecatory remarks directed at other witnesses or parties.
Peer Review and Discipline
Medical experts should be aware that transcripts of depositions and courtroom testimony are public records, subject to independent peer review by colleagues and professional organizations, and that testimony in some states may be subject to the jurisdiction and review of appropriate licensing or disciplinary boards.
Compensation of the Expert Witness
The acceptance of fees that are disproportionate to those customary for professional services can be misconstrued as influencing the testimony given by the witness. Therefore fees should be reasonable and commensurate with the time and effort given to reviewing records and pertinent literature, writing reports, and appearing for deposition or testimony. It is always unethical for a physician to accept compensation that is contingent upon the outcome of litigation.
These guidelines, originally drafted by Thomas Weir, MD, JD, and Gary Rischitelli, MD, JD, MPH, were modeled after similar guidelines prepared by the American Medical Association, the American College of Physicians, the American College of Surgeons, the American Academy of Orthopedic Surgeons, the American College of Obstetricians and Gynecologists, and the American College of Radiologists. The authors gratefully acknowledge the contributions of the following individuals who supplied comments or acted as reviewers: Ron Teichman, MD, MPH; Susan Cassidy, MD, JD; and Raja Khuri, MD, from the ACOEM Committee on Ethical Practice in Occupational Medicine; and Charles Lucey, MD, JD, MPH; Patrick Joyce, JD, MD, MPH; Marcia Scott, MD; Modesto Fontanez, MD, JD; Gregg Stave, MD, JD, MPH; and Andrew Campbell, MD, from the ACOEM Occupational Health Law and Policy Section. The guidelines were subsequently reviewed, revised, and reaffirmed by the ACOEM Committee on Ethical Practice in Occupational Medicine in August 2007 and reaffirmed by the ACOEM Board of Directors on October 25, 2007.