In cases involving compensable physical injuries, it may be tempting to call the physician who treated the injured person as an expert witness. After all, the treating physician saw the injuries or illness soon after they initially happened and responded to them in real-time. Plus, the injured person already has a relationship with the treating physician, making the physician easier to contact when building a case.
Relying on a treating physician as an expert witness, however, is rife with pitfalls for both plaintiffs and defendants. Rather than defaulting to the choice of a treating physician as an expert witness, consider carefully the reasons that the treating physician may not be the ideal choice.
1) Treating Physicians Make Better Fact Witnesses
The same reasons a treating physician can make a tempting expert witness often make that same physician an ideal fact witness. Treating physicians see their patients when a problem exists or is persisting despite earlier attempts at treatment. As a result, they can testify as to what they saw, heard, or touched, as well as to the steps they actually took to diagnose and treat the patient’s medical conditions. Through medical records and their own appointment notes, a treating physician is able to bring the day of diagnosis or treatment into the courtroom without running afoul of hearsay rules.
A treating physician who appears as a fact witness is limited to their own observations of the patient. They cannot give a medical opinion on the stand based on external facts or records they did not have at the time of treatment. These circumstances, while limiting, can also benefit a case and client by limiting opportunities for the treating physician to be challenged on the basis of bias.
2) Treating Physicians Can be Accused of Bias
A treating physician’s preexisting relationship with the patient means they’re already familiar with some aspect of the case. However, it may also open up the treating physician to accusations of bias if they are called upon as an expert.
Treating physicians may be accused of being biased in favor of the patient, particularly if the patient is the plaintiff. They may also be accused of bias in favor of their own diagnosis and treatment decisions, even if evidence indicates that alternate diagnoses or treatments would have been more appropriate. A treating physician cannot both provide treatment and later perform an independent medical exam. Their own memories of prior treatment will inevitably influence a later exam. For this, an independent expert is essential.
3) Not All Treating Physicians Have Expert Credentials
The role of a treating physician is to provide care for a patient with symptoms of an injury or illness. The role of an expert witness, however, is to evaluate records, contextualize information within a larger picture, and provide an informed opinion on key questions in the case. This role requires specific credentials that the treating physician may not possess.
Treating physicians are the experts in the room when it comes to their own observations and actions in response to a patient’s apparent needs. This focus on the patient, however, can prevent a treating physician from having the perspective necessary to serve as an effective expert witness.
4) Complex Questions May Require Several Experts
When a plaintiff is injured, a number of legal questions will touch on the injury itself. These include the essential questions of causation and damages. Some injuries may arise from a single cause, like a car accident or a fire started by a defective product, yet can affect several different body systems. The injured person’s prognosis for each affected body system can vary and different treatments may produce very different post-injury impacts for that individual’s quality of life.
For example, imagine a plaintiff is injured in a car accident. By the trial date, the plaintiff’s broken hand—treated by an orthopedic surgeon—is healing well. The plaintiff reports little discomfort and is making excellent progress in physical therapy. However, the plaintiff also suffered a traumatic brain injury in the same crash. This injury has required ongoing care from a neurologist and their recovery has shown little improvement.
Though the orthopedic surgeon, the physical therapist, and the neurologist all play a part in the overall picture of the severity and prognosis of the plaintiff’s injuries, none of the three have the entire picture. Additionally, treating the patient equipped none of these practitioners to give an informed opinion on the cause of the injuries. They each may be excellent at helping patients, however, all three are medical professionals, not car crash experts.
In this type of scenario, one or more expert witnesses will be required to review the causal factors of the case. Experts in orthopedic surgery or neurology can help a jury understand how the patient’s treatment was appropriate and why the patient’s actual results are expected—or unexpected. An expert witness well-versed in car accident physics can discuss causation in ways a treating physician cannot.
5) Treating Physicians May Hesitate to Testify
Finally, a treating physician may hesitate to take on the role of an expert witness. Time constraints, ethical concerns, and lack of experience in the expert witness role can all cause a treating physician to decline the position of expert. But since appearing as a fact witness engages these hurdles in a different way, it may be a more acceptable option for a treating physician.
Every case presents a unique set of facts and questions, so it’s always best to weigh the choice of expert witness carefully for each new situation. But in making these essential case decision, keep in mind that an independent expert witness or set of expert witnesses can help bolster the testimony of a treating physician as a fact witness, without risking their disqualification.
