Distinguished Panel Deliberates Expert Witness Testimony

What the courts will be looking for and requiring, Mr. Hinchey said, are experts who are specifically and verifiably experienced in the medical area relevant to the particular case, are good communicators and, preferably, are locally recognized and situated.

Equal Access?

The latter requirement is just one more aspect of malpractice litigation that puts the plaintiff at a disadvantage, according to Roger Rose, MD, an otolaryngologist in private practice in South Salem, NY, and Associate Adjunct Professor of Otolaryngology at New York University. Dr. Rose has offered expert witness testimony in numerous cases over the years, on both the plaintiff’s and defendant’s side of the courtroom. Traditionally, he said, plaintiff’s experts have tended to come from out of town, as many physicians are reluctant to testify against another physician in their community.

“Defense testimony is never a professional problem,” Dr. Rose said. “Plaintiff testimony is often another story. Can you testify against a fellow physician and maintain the respect of your colleagues and keep your career on track?”

Dr. Rose believes that the answer to that question must be “yes,” and that it is essential to the balance of justice that a patient who may have suffered from negligence or error have the same access to expert witnesses as the defense. He said more physicians need to be willing, in the name of fairness, to answer the call when a plaintiff’s attorney asks for help.

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Figure. Dr. Sandra Shapshay, Dr. Gerald B. Healy, Edward Hinchey, Dr. L.D Britt, and Dr. Roger Rose (left to right) discussed controversies surrounding testifying as an expert witness during a Triological Society panel discussion.

“I’m 75 years old and retired from practice, so why am I still getting plaintiff’s cases to review? Because nobody else will do it,” Dr. Rose said. “I would often prefer that more qualified doctors look at these cases, but attorneys for patients know they are working in a vacuum and I’m the only one they can get.”

An Old Problem

Concerns regarding equal access and the reliability and the responsibility of expert witnesses are nothing new, according to Sandra Shapshay, PhD, a lecturer in the Philosophy Department at the University of Indiana in Bloomington who researches and teaches in the area of biomedical ethics. She pointed out that the legal and medical professions have been wrestling with the dilemma of expert witnesses for hire since at least the late 1800s.