American Academy of Pediatrics Committee on Medical Liability
The American Academy of Pediatrics joins with other medical organizations in
emphasizing the obligation of objectivity when its members respond to requests
to serve as expert witnesses in the judicial system. Regardless of the source of
the request, such testimony ought to embody the relevant facts and the
expert’s knowledge, experience, and best judgment regarding the case. At the
same time, the Academy reiterates that it cannot condone participation of its
members in legal actions in which their testimony will impugn some
performances that clearly fall within the accepted standards of practice or,
conversely, will endorse some obviously deficient practices.
The role of an expert witness in a medical liability case is to testify to the
standards of care in a given case, and to explain how the defendant did or did
not conform to those standards. An expert witness may be asked to testify as
to whether a deviation from the standard of care caused the injury. Expert
witnesses are also called upon to help an attorney determine if a case has
merit, and in several states attorneys are required by law to consult an expert
before a suit is filed. Because experts are relied upon to help courts and juries
understand the “standards of practice” as applicable to a given case, care must
be exercised that such “expert testimony” does not narrowly reflect the
experts’ views about applicable standards to the exclusion of other acceptable
and perhaps more realistic choices. The standards of care for generalists may
not necessarily be the standards of care for subspecialists. The Academy
considers it unethical for any expert to provide testimony that does not adhere
scrupulously to the goal of objectivity.
The Academy also recognizes its responsibility and that of its Fellows for
continued efforts to improve medical care for children. However, some claims of
medical malpractice may represent the response of our society to a
technologically advanced form of medical care that has, unfortunately, fostered
some unrealistic expectations. As technology continues to become more
complex, risks as well as benefits continue and sometimes increase, making
the practice of medicine more and more complicated.
Under such circumstances, it becomes most important to distinguish between
“medical maloccurrence” and “medical malpractice.”
1 “Medical malpractice,”
according to Black’s Law Dictionary,
1(p864) is defined as follows:
In medical malpractice litigation, negligence is the predominant theory
of liability. In order to recover from negligent malpractice, the plaintiff
must establish the following elements: (1) the existence of the
physician’s duty to the plaintiff, usually based upon the existence of the
physician- patient relationship; (2) the applicable standard of care and
its violation; (3) a compensable injury; and (4) a causal connection
between the violation of the standard of care and the harm complained
of.
In contrast, medical maloccurrence is a less- than-ideal outcome of medical
care, which may or may not be related to the reasonableness of the quality of
care provided. Whereas a medical maloccurrence is always present in cases of
malpractice, the converse is not true. Certain medical or surgical complications
can be anticipated and represent unavoidable effects or complications of
disease. Still other unavoidable complications arise unpredictably for the
individual patient. Of course, others occur as a result of judgments and
decisions carefully made by physicians and patients with informed consent but
that turn out, in retrospect, to have been the least desirable of several options
considered. Each of these situations represents maloccurrence rather than
malpractice and is a reflection of the innate uncertainty inherent in medicine.
The potential for personal satisfaction, professional recognition, or financial
reward appears to encourage “expert testimony” that overlooks the distinction
between a simple maloccurrence and actual malpractice. The Academy
considers it unethical for an expert to distort or misrepresent a maloccurrence
in which the applicable standard of care was not violated as an example of
medical malpractice—or the converse.
The Academy supports the concept of appropriate, prompt compensation to
patients for injuries due to medical negligence. Under the present legal,
insurance, and social tenets, such remuneration is sometimes made for
medical maloccurrence in which no malpractice is present, on the assumption
that the larger society should bear financial responsibility for such injuries.
The moral and legal duty of physicians to testify as called upon in a court of law
in accordance with their expertise is recognized and supported. This duty
implies adherence to the strictest ethics. Truthfulness is essential and
misrepresentation or exaggeration of clinical facts or opinion to attempt to
establish an absolute right or wrong may be harmful, both to the individual
parties involved and to the profession as a whole. Furthermore, the acceptance
of fees that are disproportionate to those customary for such professional
endeavors is improper as the payment of such fees may be construed as
attempting to influence testimony given by a witness.
The 1992 opinion of the American Medical Association on Medical Testimony
states as follows:
As a citizen and as a professional with special training and experience,
the physician has an ethical obligation to assist in the administration of
justice. If a patient who has a legal claim requests a physician’s
assistance, the physician should furnish medical evidence, with the
patient’s consent, in order to secure the patient’s legal rights.
The medical witness must not become an advocate or a partisan in the
legal proceeding. The medical witness should be adequately prepared
and should testify honestly and truthfully. The attorney for the party
who calls the physician as a witness should be informed of all favorable
and unfavorable information developed by the physician’s evaluation of
the case. It is unethical for a physician to accept compensation that is
contingent upon the outcome of litigation.
2(p46)
The Academy encourages the development of policies and standards for expert
testimony. Such policies should embody safeguards to promote the accuracy
and thoroughness of the testimony and efforts to encourage peer review of the
testimony.
The following principles have been adopted as guidelines for the American
Academy of Pediatrics and its members who assume the role of expert witness:
1. The physician should have current experience and ongoing knowledge about
the areas of clinical medicine in which he or she is testifying and familiarity with
practices during the time and place of the episode being considered as well as
the circumstances surrounding the occurrence.
2. The physician’s review of medical facts should be thorough, fair, objective,
and impartial and should not exclude any relevant information in order to
create a perspective favoring either the plaintiff or the defendant. The ideal
measure for objectivity and fairness is a willingness to prepare testimony that
could be presented unchanged for use by either the plaintiff or defendant.
3. The physician’s testimony should reflect an evaluation of performance in light
of generally accepted standards, neither condemning performance that clearly
falls within generally accepted practice standards nor endorsing or condoning
performance that clearly falls outside accepted practice standards.
4. The physician should make a clear distinction between medical malpractice
and medical maloccurrence, which is not the result of a violation of the
applicant standard of care when analyzing any case. The practice of medicine
remains a mixture of art and science; the scientific component is a dynamic
and changing one based to a large extent on concepts of probability rather
than absolute certainty.
5. The physician should make every effort to assess the relationship between
the alleged substandard practice and the patient’s outcome, because deviation
from a practice standard is not always the cause of the less- than-ideal
outcome at issue in the case.
6. The physician should be willing to submit transcripts of depositions and/or
courtroom testimony for peer review.
7. The physician expert should cooperate with any reasonable efforts
undertaken by the courts or by plaintiffs’ or defendants’ carriers and attorneys
to provide a better understanding of the expert witness issue.
8. It is unethical for a physician to accept compensation that is contingent upon
the outcome of the litigation.
Guidelines for Expert Witness Testimony in Medical Liability Cases
Bradford P. Cohn, MD, Chairperson
Jan Ellen Berger, MD
Ian R. Holzman, MD
Jean Lockhart, MD
Mark Reuben, MD
Consultant
Holly Myers, Esq
William O. Robertson, MD
Steven Selbst, MD
