Over the past few decades, professional medical societies have grappled with various methods for assuring responsible and ethical expert testimony in the courts. Some of the mechanisms have included regulatory/disciplinary action by the society, expert witness precertification programs, affirmation statements and ethical testimony policy statements.
The Academy has had a policy on ethical expert testimony since 1989. The most recent revision of this policy statement, with an expansion of comprehensive information into an accompanying technical report, highlights the Academy’s commitment to this important topic.
The policy statement Expert Witness Participation in Civil and Criminal Proceedings, which replaces the 2009 statement, is available at http://bit.ly/2kLeMwh and will be published in the March issue of Pediatrics. The technical report is available at http://bit.ly/2l0fLXX. Both are from the AAP Committee on Medical Liability and Risk Management.
Recommendations for pediatricians
A growing number of pediatricians are engaged in the legal system as expert witnesses, whether in civil cases (such as malpractice actions or child protection hearings) or in criminal cases (usually pertaining to child abuse).
The policy includes numerous recommendations for AAP members engaging in expert testimony. Following are some of the highlights:
- Complete an expert witness affirmation statement and offer to provide a copy of the statement to the legal counsel who secured their services.
- Be actively and meaningfully engaged in clinical practice in the medical specialty or area of medicine about which they testify, and have knowledge of or experience in performing the skills and practices at issue in the lawsuit.
- Render an opinion only after reviewing sufficient medical records and documents to enable the formation of unbiased and accurate conclusions. If all medical records are unavailable for review, pediatricians should recuse themselves from serving in an expert capacity or acknowledge that their expert opinion is based on limited information.
- Present testimony that reflects the generally accepted standard within the specialty or area of practice, including those held by a significant minority.
- Provide objective, valid opinions that are well-supported by their clinical experience and the best evidence-based medical literature, regardless of whether it is to be used by the plaintiff/prosecutor or defendant.
- Testify to matters only within their expertise. If asked about matters outside their expertise, physicians should refrain from testifying on those matters.
- Testify in cases of abuse and neglect, especially if they have special knowledge and/or extensive experience in the field. General pediatricians testifying in these cases may wish to consult with subspecialists in child abuse pediatrics.
- Do not enter into agreements in which compensation for expert witness work is contingent on the outcome of the case.
Most importantly, pediatricians should recognize that unbiased and scientifically sound medical testimony can impact not only individual outcomes for children, families and physicians but also the reputation of physicians throughout society.
Dr. Narang, lead author of the policy statement and technical report, is a member of the AAP Committee on Medical Liability and Risk Management.
