The Ethics of Being a Medical Expert Witness

Medical professionals who undertake the role of expert witness are generally expected to have an unrestricted license to practice medicine, to be knowledgeable and experienced in the area in which they are functioning as a medical expert, and to have knowledge of the legal system. At the initial contact by the court or an attorney, the expert clarifies the question being asked and explores the relevant information about the case. The discussion of the question also permits the expert to be explicit about limitations of the evaluation he or she can offer. The expert witness must know the law that is relevant to the forensic question in the jurisdiction in which the expert may testify. The court or the attorney can provide the applicable statutes. Professional values require such obligations. In addition, legal consequences involving criminal and civil verdicts with ensuing penalties require this standard of obligation.

Medical experts can expect cooperation from the court or attorney in obtaining all the relevant legal, social, and medical documents. Medical experts should obtain consultations from others when there are important areas outside of the expert's knowledge. The medical expert must also be aware that the attorney may have a hidden agenda— understanding the hidden agenda may influence the expert's decision to accept or refuse the case. For example, when the evidence is not strong, is the prosecuting attorney's raising the question of competence to stand trial (CST) a way to keep the individual from being released? Is the defense attorney's request for an evaluation of CST a way to prolong the legal process so that prosecution witnesses may become difficult to locate, thereby weakening the district attorney's case? These are ethical questions the legal system must address, but medical experts who work with the legal system have a clinical obligation to avoid abuse of their role.

The individual who agrees to function as an expert witness is entitled to an expert witness fee, the terms of which should be clear and explicit at the time that the work is started. It is unethical for expert witnesses to make their fees contingent on the outcome of trials. In fact, there are advantages to the expert working with a retainer fee, against which the work of the forensic expert may be charged: (1) it diminishes whatever influence the examiner's concern for payment has on the quality of the work, and (2) if asked on cross-examination if the experts are being paid for their opinions, the experts are able to respond that in fact they were paid on a retainer basis for their time. Such arrangements avoid the ethical problem of experts being seen as "hired guns."

The informed consent of the individual to undergo a forensic medical evaluation should be obtained whenever possible. This includes a description of the purpose of the evaluation, the limits to confidentiality that may exist, and to whom a report will be made. The doctor-patient relationship includes, as one of its ethical requirements, the qualified obligation that the physician maintain confidentiality. The examinations conducted by the medical expert witness are usually outside the scope of the doctor-patient relationship; however, the bioethical obligations remain, and the physician must be aware of the bioethical obligation not to harm the individual unnecessarily by gratuitous disclosure of information. The disclosure of information must conform with the requirements of the law and the explanation made to the individual examined. In a legal context, the medical expert is bound not by rules of medical confidentiality, but by the rules of confidentiality that the legal circumstances require. It is expected that the medical expert witness will be aware of and abide by the specific rules of confidentiality applicable to work with the legal system. Informing the examinee may not be sufficient protection because the physician can create a relationship in which the examinee forgets the warning (Diamond). There are circumstances in medical-legal evaluations where consent is not required. The individual is then informed that the evaluation is legally required. However, if the individual chooses not to participate, the refusal will be included in any report or testimony.

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