The Expert Witness Role

Expert-witness testimony in an adversarial legal system may lead to a battle of the experts, a battle that may be avoided if the court appoints an expert approved by both sides of a legal action. There are different models for the expert-witness role. In the first model, the court-appointed or "impartial expert" witness model, the expert witness is still subjected to cross-examination, yet has the implied endorsement of the court—the court would not hire an unqualified expert. However, the view that such an expert witness is neutral is a fallacy (American Academy of Orthopedic Surgeons) because the expert is necessarily an advocate for his or her opinion. In the second, the objective "expert-model," the expert is hired by or appointed to one party, but the expert's role is limited to a comprehensive examination of the evidence and formulation of an opinion, if possible. In the third, the "consultant" model, the expert functions as a consultant to the attorney. The expert provides an accurate statement of the examination conducted, the findings of the examination, and the opinion and reasoning used to arrive at the opinion, and provides assistance with trial strategy and cross-examination (Appelbaum). The ethical hazard of this model is that the expert may identify with the attorney's position and become an advocate.

In each model, the medical expert is expected to provide a clinical evaluation and a review of the applicable data in light of the legal question posed and in the spirit of honesty and striving for objectivity—the expert's ethical and professional obligation. This includes a thorough, fair, and impartial review and should not exclude any relevant information in order to create a view favoring either the plaintiff or the defendant (American Academy of Psychiatry and the Law). The treating physician, whom the court may compel to testify as a fact witness regarding contact with a patient, is frequently sought to provide expert-witness testimony. The legal system assumes that the treating doctor is more credible than a nontreating doctor. The treating physician has a specific therapeutic focus—the patient's health—that may not allow service as an expert witness. The treating physician may encounter a conflict of interest (e.g., maintaining the patient's confidentiality versus providing the court with information).

When taking on the functions and obligations of the expert-medical-witness role, the treating physician may, out of loyalty to the patient's best interests, act as an advocate for the patient. This distorts the obligation of the expert witness. On the other hand, if the treating doctor's expert testimony does not have the effect of adequately supporting the patient's position, the doctor-patient relationship may deteriorate as a result. Hence, the role of physician as advocate for the patient may be inconsistent with the role of physician as expert witness and pose the ethical issue of conflict of role obligation. This conflict should be avoided. When this is not possible, self-awareness of the possible conflict and awareness by the court of the conflict may minimize its effects.

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