Ethical Challenges When Using Treating Physicians as Expert Witnesses

Edward Maggio, J.D., M.S.

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— Updated on June 3, 2021

Ethical Challenges When Using Treating Physicians as Expert Witnesses

It’s not unethical for treating physicians to testify as expert witnesses in legal proceedings. However, physicians offering expert testimony for their own patients are increasingly coming under scrutiny. Such testimony tends to bring about sensitive concerns and issues. For these reasons, it’s generally ill-advised for treating physicians experts to provide testimony unless certain guidelines are followed closely.

Two Types of Witnesses

Generally, there are two types of witnesses in legal proceedings: factual and expert. A factual expert can testify to matters they know first-hand. This would include knowledge gained from speaking with or treating a patient. An expert witness, on the other hand, can testify to matters beyond the knowledge and experience of a layperson, and that may not be known firsthand.

Depending on their background and time with a patient, treating physicians can fall into both categories. However, when it comes to issues such as the cause of a plaintiff’s injuries or percentage of medical disability, the boundaries can become confusing. At the core of this issue is whether a treating physician can conduct themselves in court responsibly and unbiasedly as an expert witness could.

The Fine Line

Treating physicians generally serve as fact witnesses since they can offer testimony regarding their treatment of the patient/plaintiff. The focus of testimony from a treating physician in this scenario is solely on their observations at the time of diagnosis, examination, and treatment of the plaintiff. There is no better witness that can provide information as to the initial contact and continual medical care given to a patient. A treating physician can also discuss statements made by the plaintiff and the circumstances surrounding any diagnosis.

However, a treating physician begins to push this boundary if they offer a medical opinion as to causation or review material outside the plaintiff’s medical records. This then becomes expert witness testimony. And as an expert, a treating physician’s testimony is subject to heightened evidentiary standards.

For example, an oncologist who testifies regarding his treatment of the plaintiff’s disease would just be a factual witness. However, should a treating physician discuss how the plaintiff’s sickness originated from industrial pollutants, this would be different. In that circumstance, they are offering a scientific opinion on causation. And this testimony could potentially be stricken by opposing counsel if it does not meet the scientific reliability standards set forth in Daubert or Frye.

Careful Considerations

Generally, when an attorney requests a treating physician to offer testimony, there are some preliminary steps to consider. Firstly, the treating physician should find out the nature of the legal proceeding and the purpose of their requested testimony. They also should discuss their potential appearance with their patient. It is necessary to obtain a patient’s informed consent to their participation in the legal matter.

A Question of Bias

The treating physician should consider that their credentials will be challenged by opposing counsel. Any potential for expert bias is fair game in cross-examination. As a medical professional providing testimony on the care of their own patient, it may be difficult to testify without seeming partial to the plaintiff’s legal matter.

This raises the recurring theme for any expert witness concerning the nature of their testimony. Jurors prefer an expert to simply explain the facts of a situation from their own examination. An expert has to appear neutral and not invested in one side of the case. A treating physician automatically has a hurdle to get over in terms of perceived bias. That is why it’s important for the treating physician to make sure they have at least one face-to-face meeting with the attorney for the patient/plaintiff. This meeting should take place before any testimony is offered and far in advance of any hearing or trial.

Basic Rules

Treating physicians have some basic rules to follow. Generally, when serving as an expert witness, the treating physician should:

  • Review all medical records of the patient and the latest medical literature including any clinical practice guidelines
  • Testify within the limits of their own knowledge, training, and experience
  • Maintain a position of objectivity and impartiality
  • Acknowledge any potential bias preferably before cross examination takes place

These rules provide at least a small overview of areas requiring careful preparation. Further case-specific discussions between the treating physician and the attorney should always occur at the onset of the case to mitigate any potential issues down the line. While it is not unethical for a treating physician to testify as an expert witness, it is still a potential problem if preparation and attention to detail are not heeded.

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