Risk Management

The Role of the Expert Witness

 By Jerome W. Bettman Sr., MD

Digest, Fall, 1992

At some point during their professional life, many ophthalmologists are asked to serve as an expert witness, either on behalf of the plaintiff or the defendant. The function of an expert witness is to help define the standard of care as it pertains to the case under consideration and to render an opinion as to whether the care provided met this standard.

Legal standards of care are not necessarily what a majority do, but what a minority of acceptable ophthalmologists would do. The fact that the expert might not do it is not germane to his or her opinion.

Evaluating whether the care provided was substandard may be difficult. There are many gray areas and an expert witness should be cautious about stating that care was substandard because once this is indicated, the plaintiff’s attorney will not desist.

The expert is not rushed and has the advantage of being able to evaluate all aspects of the case in retrospection. The treating physician did not have this advantage. Errors in judgment do not constitute substandard care. However, if care was indeed substandard the expert must say so and be willing to testify to it.

The Discovery Process

It is essential that the expert be acquainted with certain fundamentals of giving a good deposition. The deposition is as important as the trial itself and often determines whether there will be a trial. The deposition is part of the discovery process and should be considered a continuous cross-examination conducted by the opposing attorney. The attorney is attempting to learn facts about the case and whether the care was substandard. The attorney also is determining what impression the expert witness will make on a jury, and laying the groundwork so it appears that the witness is contradicting him or herself when similar questions are asked in trial.

In light of this, it is essential that all answers be brief and to the point. A simple “yes” or “no” answer is often the best one. Be careful about “Yes, but….” and “No, and…” answers. What is said after the simple yes or no may cause problems later.

An expert should listen carefully to the question, answer it truthfully, and not amplify the answer. Compound questions should be broken up before answering. Do not hesitate to say “I don’t know.” Do not allow attorneys to put words in your mouth and thereby alter your intended meaning.

A Contest of Impressions

A trial is a contest of impressions. Juries are frequently faced by expert ophthalmologists on each side who give conflicting opinions. Expected to weigh one opinion against the other, juries must consider the relative qualifications and credibility of each expert and the basis for each opinion. Juries give great weight to the demeanor of witnesses and whether testimony is given in a logical, convincing manner.

An expert witness must meet certain ethical and legal requirements: expertise in the area of concern, honesty, impartiality, imperviousness to monetary considerations. Qualifications should be stated clearly but not arrogantly. The expert should dress and act conservatively, and speak to the jury as a kindly, helpful educator would speak to novices. Use both lay and scientific terminology. The former so the jury will understand it and the latter so the meaning is clear in the event of future disputes or retrials.

Listen carefully to the long hypothetical case that will be presented and attendant questions before answering. Do not agree unless you agree with every part of it. Do not hesitate to ask that it be repeated. Never get angry or argue with an attorney. Be truthful. Do not exaggerate or amplify.

Expert for the Plaintiff

Should an expert witness take cases for the plaintiff? There are several reasons why an expert who takes cases for the defendant also should accept them for the other side:1

• The vast majority of plaintiffs’ cases are without merit. An honest, knowledgeable expert can influence the plaintiffs’ attorney to drop these cases at an early stage, thereby saving time, money and emotional trauma.
• It adds to one’s credibility as an expert witness.
• It is only fair that each side obtains good advice.
• Dishonest witnesses are available if honest ones refuse.

Setting Fees

Expert witnesses typically charge for their time, effort and expenses involved in preparation for and during a trial. The fee charged may depend on the credentials and experience of the expert and may vary according to geographic area. Hourly rates are usually preferable to flat fees. Avoid having your compensation be contingent in any respect on the outcome of the litigation. Ask for advance payment from a plaintiff’s attorney who is not well known to you. Send an itemized bill of actual time and services rendered and expenses incurred once your service is completed.

For further guidance on serving as an expert witness, contact OMIC for copies of three statements on this subject published by the American Academy of Ophthalmology: Textbooks, Journal Articles and the Standard of Care; Expert Testimony by Ophthalmologists; and Some Suggestions for Determining Compensation for Expert Testimony by Ophthalmologists.

Notes:

1. Bettman JW. Problems of Conscience and Fact. Survey of Ophthalmol. Sept-Oct 1984;29(2):137.