The role of the expert witness in
medical malpractice litigation
When a medical malpractice lawsuit occurs, the hospital and all members of the health care team may be named as defendants. This might include the nurses, physicians, nurse practitioners, midwives, ambulance attendants, laboratory technicians, respiratory therapists, nursing and medical students and contracted hospital employees who provided care. Both the plaintiff and defense lawyers may then be required to retain experts from each of the defendant disciplines to provide expert opinion. Although there is no obligation for health care professionals to take on this role, you may be considering it. Many regulatory bodies endorse the professional responsibility to do so. This article will help you learn more about the role and responsibilities of the expert witness.
The role of the expert witness is an important one that can have far-reaching effects on patients, families, colleagues, the public and the systems and institutions that support healthcare. As an expert, your role is to provide a thorough and objective opinion on whether or not professional standards of care were met; did the health care providers exercise a reasonable degree of skill and knowledge and act as another normal, prudent practitioner would have acted under the same or similar circumstances? You will provide opinion by performing a thorough review of the medical records, researching relevant standards of care, providing a verbal opinion of your findings, preparing a written expert report and, if the case proceeds to trial, appearing in court as an expert witness. Before you take on this important professional role, here are some questions to consider;
- Do you have the expertise required to provide opinion? It is important that you only provide opinion within your area of expertise and that you have solid understanding and experience with the issues that are particular to each case. Your professional qualifications and the basis of your opinion may be rigorously tested during trial and cross examination.
- Do you have any known or potential conflicts of interest? If you have had any previous involvement with the patient or family, the defendant health care providers, the hospital/institution or other lawyers working on the same case, it may be inappropriate for you to act as an expert.
- Can you provide an impartial, objective and unbiased opinion? Examine personal biases that may interfere with your ability to provide an objective opinion. Refuse the case if you have personal knowledge of the events or people involved or if you have strong views on the case issues. For instance, do not act as an expert on a case involving uterine puncture during a therapeutic abortion if you have strong anti-abortion views.
- Do you have the time to act as an expert witness? The role of an expert may require many hours over the course of several weeks or months.You will be required to work within court imposed dates and deadlines. Realistically assess your availability to perform a thorough review of the documents, conduct research and prepare a defensible written report. If the case proceeds to trial, you may also be required to prepare extensively and travel to another city or province.
- Do you have the skills required for the role of an expert witness? You may be required to prepare a professional resume or CV, undergo interviews with lawyers, present a verbal opinion, write a medical/legal report that meets specific rules and guidelines and provide expert witness testimony in court.
Your first step into the legal world can throw you considerably off balance. While the knowledge base and skill sets of lawyers and health care professionals differ, the desire for success and preparedness is mutually shared. Expert witness education and training is an excellent success strategy for health care professionals. A good programme will make ‘legalese’ comprehensible and provide a basic education of the law. It will include instruction on CV preparation, stages of litigation, your role as an expert and the rules for the written expert report. It will prepare you for testifying in court and provide effective strategies for dealing with the adversarial aspects of cross examination. Lawyers and health care professionals rely heavily on each other during medical malpractice litigation, and expert witness training promotes a successful partnership.