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A: Often, medical malpractice cases are won or lost on the strength and credibility of the medical experts. Therefore, opinion testimony is vital to fair resolution of these disputes. Acting as an expert witness represents a valuable contribution to the legal system while enhancing one's professional reputation. Historically, physicians have been reluctant to testify in court as an expert witness. However, changing circumstances have prompted more and more physicians to expand their practices to include medical-legal expert witness work. Many physicians find the expert role challenging and interesting, as well as an effective way to supplement one's income. An expert's duties may consist of reviewing medical records, examining patients, giving deposition testimony and testifying at trial and/or arbitration. Serving as a defense expert is a comfortable role for many physicians. They find the evaluation of the medical issue and the determination as to whether the physician met the standard of care to be a way of providing needed support to a physician against a litigious patient. Even where an expert physician finds that the defendant physician fell below the standard of care, there is still a sense that an honest and straightforward evaluation of the case will assist the attorney in an early resolution of the claim. However, it is important that physicians who act as medical experts not appear biased in favor of their colleagues. The following question is always asked at a deposition of an expert witness, "Doctor, in your work as a medical expert, what percentage of your expert work is devoted to reviewing cases on behalf of physicians and what percentage of your work is devoted to reviewing cases for plaintiffs?" If the physician-expert answers that she/he has acted as an expert witness for the defense only, her/his credibility can be irreparably damaged. Therefore, should you decide to review cases on behalf of defendant-physicians, in order to avoid a claim of bias by either side, you should also be willing to review cases on behalf of plaintiffs who sue physicians. Testifying on behalf of an injured patient raises several potential conflicts and complications. First, who is the physician being sued? Practically speaking, your decision to testify against a colleague in the same community can cause discord and hard feelings impacting on professional relationships. Therefore, you should always ask the name and specialty of the physician who is being sued. You can then determine whether or not that physician is someone with whom you work closely and are likely to see in the operating room after you have testified. Next, ask the name of the attorney representing the physician being sued. There have been circumstances where a physician agrees to act as an expert against a physician only to find out later that the attorney representing the defendant-physician has represented the expert physician in her/his own medical malpractice case! When it comes time for the attorney who has represented you in the past to take your deposition as an opposing expert, it can prove awkward and embarrassing. Finally, you will want to avoid situations where your objectivity is subject to challenge. Where the defendant-doctor is your competitor, your testimony on behalf of an injured patient may be attacked as vindictive or motivated by greed and envy. Similarly, the value of your opinion testimony concerning the safety and efficacy of a particular medication could be compromised if the pharmaceutical manufacturer funds one or more of your favorite clinical research projects. Total objectivity is the hallmark of expert opinion testimony, while bias in the form of adverse financial interests is the antithesis.
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