Risk Management



The Role and Way of the Expert Witness

By Jerome W. Bettman Sr., MD

Argus, February, 1995

At some point during their professional life, many ophthalmologists are asked to serve as expert witnesses. While most are willing to testify in defense of a colleague, many hesitate to accept cases on behalf of the plaintiff. An individual is not required to serve as an expert witness; however, the foundation of democracy depends upon access to a fair trial. There are several reasons why experts should be willing to testify for either side.

First, if honest and informed ophthalmologists are not available, attorneys will use someone else, possibly a “hired gun” who will say almost anything in return for a sizable advance payment. Second, it enhances an expert’s credibility to be willing to testify honestly for either side. Third, plaintiffs, like defendants, are entitled to an honest and unbiased opinion. Fourth, the great majority of claims are without merit. A trustworthy expert evaluating a case which has little prospect of success may be able to persuade the plaintiff’s attorney to drop the matter at an early stage, thereby saving considerable money, time and psychological trauma for both sides.

The Role of the Expert Witness

The expert witness has two functions: to testify regarding the standard of care, and to testify whether it is probable that the procedure was the cause of the claimed injury. A general guide to the community standard is whether a reasonable minority of reputable physicians would have done the same. “Reputable” in this context simply means not disreputable. It does not have to be what the majority would do, but certainly it should be more than what a very few individuals would do. The standard of care must be that which was accepted at the time the alleged act occurred; any changes in the standard since that time are irrelevant.

It is important for ophthalmologists who serve as experts to understand the philosophical differences between medicine and law. In medicine, the goal is to arrive at the diagnosis and best therapy through open discussion among colleagues, often at grand rounds. The law attempts to determine responsibility by having each side present its best arguments, negating the arguments of the opposition, and having an impartial jury or judge determine which side is probably correct. Under the adversarial system of law, it would be a mistake for a witness to openly discuss all aspects of a matter because this could introduce considerable bias in favor of the opposing side. Each question must be answered honestly, but responses should be limited to what is required to answer the question and not amplified with “ands” or “buts.”

The Expert at the Deposition

The deposition should be considered a continuous cross-examination, part of the discovery process during which the opposing attorney attempts to determine what impression the expert will make in the courtroom if the case goes to trial. The attorney uses this opportunity to lay the groundwork to discredit the expert witness when similar questions are asked in trial. An attorney may ask the same question in several different ways and later in trial ask it in a manner that indicates the expert is contradicting himself or herself. The more the expert says during the deposition, the more likely the opposition will be able to infer that there is a contradiction in the testimony.

An expert should avoid stating that any one or two pieces of literature or individuals are the definitive authorities. There are many authorities in ophthalmology. It is unwise to refer to a particular article or book during testimony or to review it in preparation. Literature is regarded as “hearsay” unless the expert refers to it.

The Expert at the Trial

A trial is a contest of impressions. If the jurors’ reaction is, “I would like to have this expert as my ophthalmologist,” they will attach great weight to the expert’s statements. If their reaction is the reverse, the expert’s statements will be ineffectual.

The expert should state openly, but not arrogantly, his or her qualifications as an expert, e.g., training, experience, academic status and publications. Besides being a specialist in the field of medicine in question, an expert should be honest, objective and impartial. While testifying, the expert ophthalmologist should explain the matter to the jury clearly and patiently as though teaching a beginning medical student. Both scientific and lay terminology should be used — the former so the record will show what the expert means, and the latter so the jury will understand it.

During the cross-examination, the opposing attorney may try to confuse the witness by asking long, compound hypothetical questions describing every aspect of the patient. Usually, there will be one portion of the question the witness does not agree with. Answer that portion separately. The attorney may use intimidation to anger the witness or be disarmingly pleasant in an attempt to lull the witness into saying something spontaneous and inappropriate.

Guidelines for the Expert Witness

Whether testifying on behalf of the plaintiff or the defendant, these guidelines will make the experience less stressful:

  1. Always tell the truth; do not exaggerate or make statements that cannot be substantiated.
  2. Do not allow an attorney to influence your testimony by putting words in your mouth or encouraging you to state more precise numbers and percentages than you feel comfortable with.
  3. Do not volunteer information that is not asked. If something occurs to you that seems important, meet with your attorney during the recess to determine whether it is wise to bring it up during the redirect examination.
  4. Do not help the opposing attorney by asking, “Do you mean ‘X’ or do you mean ‘Y’?” You will then be asked both.
  5. Listen carefully to the entire question before answering. Never interrupt, and do not answer a compound question until it is broken into its component parts. If you do not understand a question, ask that it be repeated.
  6. Do not hesitate to say you don’t know the answer to a question. Never guess at an answer. Opinions are acceptable, guesses are not.
  7. Avoid mentioning any book, article or individual as an authority.
  8. Thoughout the trial, periodically look at the jury. Eye contact is the essence of believability.

 

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