The United States legal system is adversarial by design. Zealous representation is part and parcel with advocating on behalf of a client. However, a sense of truth and justice also needs to pervade, lest the system crumbles. As such, certain safeguards are in place to prevent an improper manipulation of the trial process.
Everyone in the courtroom taking part in the litigation – from the lawyer to the judge to the witnesses – are governed by certain legal and ethical standards. And experts are no exception. While a uniform code of professional conduct does not exist, there are certain general ethical rules that apply to anyone acting as an expert witness. Likewise, there are more specific standards governing an expert’s conduct as it applies within their particular field of expertise.
All experts should be familiar with both the broad ethical standards and the specific rules within their profession. Attorneys and litigants as well should be aware of such rules, so as to ensure the conformity therewith and to avoid incidental ethical breaches at trial.
Ethical Guidelines for Medical Experts
Arguably, some of the most important expert witnesses to frequent a courtroom are from the medical profession. From medical malpractice claims to large-scale products liability litigation, medical experts – along with their research, studies, and examinations – oftentimes make or break a case. The type of medical expert that can be called to testify is as varied as the medical field itself. But there are certain general codes of conduct to which all physicians need to abide.
The American Medical Association is the largest and oldest association of medical professionals in the country. Founded in 1847, one of the purposes of the AMA was to establish a uniform ethical standard for the practice of medicine. The AMA Code of Medical Ethics guides the essential ethical behavior of physicians. Though not recognized as law, it requires physicians to use their “skills of ethical discernment and reflection” in adhering to the spirit of the code. The code differentiates between different levels of ethical obligation, with the word “must” indicating a “near-absolute obligation,” the word “should” means a strong recommendation, and “may” signifies that an action is “ethically permissible” when certain qualifying conditions are met.
Applying the principles of medical ethics, the AMA has set forth the code of conduct expected of physicians offering medical testimony. First and foremost, the AMA recognizes the significance of medical evidence in the legal system and states that physicians “have an obligation to assist in the administration of justice.” The AMA requires that all physician witnesses must: “a) accurately represent their qualifications; b) testify honestly; and c) not allow their testimony to be influenced by financial compensation.” Physicians who testify as experts (as opposed to fact witnesses) must only testify about areas of medicine “in which they have appropriate training and recent, substantive experience and knowledge” and are required to objectively evaluate each case and render an independent opinion. Their testimony must reflect current scientific thought and standards of care that are accepted among their peers (while also considering the standard of care applicable at the time of the event in question). If their opinion is not widely accepted in their relevant field, they must also appropriately categorize their testimony as such. Lastly, the AMA Code of Ethics prescribes disciplinary sanctions on any physician who falsely or misleadingly testifies.
While the AMA Code of Ethics provides a strong foundation on which medical experts can rely, many medical subsets have their own recommended code of conduct when testifying that elaborates or otherwise supplements the rules stated by the AMA. For example, the American Society of Anesthesiologists, which largely follows the AMA, requires that anesthesiologists be board certified in anesthesiology (or hold an equivalent specialist qualification) and be actively involved in the clinical practice of anesthesiology at the time of the event. The ASA encourages impartiality, stating that physicians should not exclude any relevant evidence to favor one party over another. Also, it states that physicians should distinguish between medical malpractice and unrelated adverse outcomes, making every effort to assess whether the standard of care and outcome were causally linked.
The American Board of Urology follows a similar ethical structure, noting that a urology expert witness “should not be manipulated by an attorney into becoming an advocate for one side or another” and disapproves of an expert “unduly” profiting from their testimony. The American Board of Urology also requires at least five years of clinical practice in order to testify as an expert.
The American Academy of Pediatrics takes a particular interest in impartiality, recognizing that cases involving children invoke a natural sympathy from the jury and as such, experts in this field have to be all the more careful to avoid unduly influencing the triers of fact.
The Consequences of False Testimony
The medical and legal communities are aware that there is a fine but distinct difference between advocating an opinion and presenting misleading testimony, which is why most of the above codes of conduct are couched in the principle that expert opinions should be based on science and be generally accepted by the expert’s peers. However, there are certain instances when an expert’s testimony may run afoul of the applicable ethical standards.
While medical professionals are protected under most state statutes and federal laws from expressing inadvertently incorrect expert opinions under oath, sworn statements that are intentionally false – like any false statement made by a testifying witnesses – are subject to criminal punishment under the applicable perjury laws. If an expert witness offers an intentional untruthful statement or opinion under oath, action may be taken by the American Medical Association, as well as any state medical boards or professional societies or organizations to which the expert belongs.
Thus, before any expert testifies, it is important to be fully cognizant of the ethical obligations to which that expert is subjected.