Ethics and Medical Expert Testimony

The medical expert may be required to testify in perhaps one of ten cases that the expert is called upon to evaluate. It is this public role that causes the most discomfort and is the most sensationalized of all the expert's functions. The medical expert witness usually engages in this work as a part of a larger clinical practice. While some experts have given up clinical work, this is rare. Medical experts who have not actively engaged in their discipline or who have given it up may find their credibility questioned in court. Medical experts have the ethical obligation to inform the court or attorney hiring them of the status of their clinical practice.

Prior to entering the courtroom, experts assist the attorney as well as they can "but only within the requirement of medical ethics" (Stone, p. 27). Each of the three models carries the ethical obligation that the expert be honest and, even when assisting an attorney, not become an advocate. The medical expert who is called to testify should require full and complete preparation from the attorney. Preparation for testimony, which almost always includes at least one pretrial conference between attorney and expert, is essential to adequate work in the courtroom.

In court, medical expert witnesses are not advocates for either side in the litigation, but may advocate their opinion. The most effective role of the expert witness is that of teacher—that is, one who elucidates the nature of the evaluations and the reasoning used to arrive at his or her opinions. The expert should present credentials without exaggeration. The expert should be prepared to present specific perspectives or bias and identify value components that are always present in interpretations of the data. If the issue before the court presents an ethical dilemma for the expert, whether as a result of personal belief or from concerns about societal harm that his or her opinion may cause, the expert has the obligation to avoid involvement in such cases. The requirement of truthfulness on the part of the medical expert witness requires that relevant information not be kept secret (Rappeport). In addition, there are limitations that occur in medical examinations, and these limitations of reviewed materials (e.g., completeness of the examination or knowledge of that area of medicine) may require the expert to qualify an opinion or, at times, to decline to provide an opinion to a particular question.

The attorney who retained the medical expert will call and question the expert with direct examination. This usually begins with eliciting the expert's credentials; the questions present the expert's education, training, experience, and other information that chronicle the achievements of the expert to the court. Using the Daubert directives, the judge may rule to exclude the expert. Medical-expert witnesses are expected to present their testimony—avoiding jargon—with sufficient clarity so that those lacking expertise can understand the findings and follow the reasoning. The attorney who has retained the expert can be expected to emphasize his or her ability and the brilliance of the conclusions. The cross-examining attorney, both in speech and gesture, will often attempt to convey to the court that the expert witness lacks credibility and that his or her conclusions are worthless.

The expert may be presented a hypothetical question, which is a conflation of assumptions and proven facts into an organized account of a situation. The hypothetical question calls for expert witnesses to assume the information in the question to be fact. Then experts are asked if they have an opinion derived from those facts and, if they do, to state that opinion. The hypothetical question is used because there is a dispute about the facts, and the hypothetical question allows the court to hear the expert's opinion without deciding if the facts in evidence are true.

The expert witness has rights in the courtroom and may ask the judge to clarify when material that is asked for is privileged. The expert witness may ask for clarification of a question or refuse to answer questions the expert does not understand. Experts may and should say that they do not have a response to the question, if in fact they do not have one. Experts, when asked a yes or no question, can ask the judge whether the answer can be qualified. If on cross-examination this is not permitted, on subsequent redirect examination the attorney who retained the expert may ask for further clarification. The expert has a right to complete an answer and should protest if interrupted. Expert witnesses, as contrasted with fact witnesses, may refresh their recollections using written notes and records.

The courtroom, the most visible portion of the adversarial system with its "battle of the experts," is viewed by some critics as a three-ring circus. Even when expert witnesses agree substantially, small differences may be exaggerated by an attorney and held up as proof that the entire discipline has nothing to offer the courts. If expert witnesses are expected to provide absolute certainty, the witnesses will inevitably be clowns in the courtroom. However, the opinion of the expert witness, as with a medical diagnosis, is a probability statement and as such, is the best conclusion given the analysis of the data. This conclusion may certainly be open to question. Although the credibility of the expert witness is important, the courtroom belongs to the attorneys. The weight given to the testimony of the expert is markedly influenced by the courtroom skill of the attorneys involved. Do the faults of the legal system outweigh its benefits and is there an alternative, superior system for arriving at legal verdicts? This is a question better considered in an analysis of the adversarial system.

At a trial, the ultimate issue is the question about which the jury or judge must arrive at a verdict (e.g., did the defendant's negligence cause the injury to the plaintiff?). It has been suggested that the medical expert respond only to questions about the medical condition and avoid responding to the ultimate issue, which some have called either a leap in logic (American Psychiatric Association [APA] Statement on the Insanity Defense) or the application of medical reality to a legal procedure. It is contended that the ultimate issue is an issue of social and moral policy and, therefore, is beyond the province of scientific inquiry. While there are circumstances when the information does not permit the medical expert to arrive at an opinion, the fact that the question has been framed in a legal context may make it appropriate for the expert to express an opinion. This opinion need not usurp the role of the trier of fact.

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