JUN 01, 2008
Question: I’ve been asked to testify as an expert in a malpractice case. The attorney would like me to testify to “X”, but after reviewing the case, objective testimony really should be “Y”. What do I do?
Answer: The expert witness is critical in helping juries understand the medical technicalities of a malpractice suit. Testimony from experts is expected to establish standard of care, and then to determine whether departure from this standard caused harm to the patient. To qualify as a medical expert, one should hold a valid medical license and be actively practicing in the relevant clinical area. Expert testimony is considered the practice of medicine in some states and is governed for all Academy members by the Academy’s Code of Ethics. Rule 16 of the Code states, in part, “False, deceptive or misleading expert witness testimony is unethical.”
Experts should be reasonably compensated for their time. This compensation, however, has the potential to create a sense of duty to the party who issues the check. This conflict of interest must be recognized and appropriately managed. Regardless of who is paying, an expert must remain completely objective in his or her testimony, even when truthful answers to questions are damaging to the designating attorney’s case. Thus, it is your responsibility to inform the attorney that you cannot in good conscience testify to “X” if you know that doing so would result in false, deceptive or misleading testimony. If the attorney persists, you should withdraw and document your reasons for doing so.
In every deposition and at trial, the question is asked, “Do you swear to tell the truth, the whole truth and nothing but the truth?” Keeping this promise will ensure your testimony is within the ethical standards of the American Academy of Ophthalmology.
For more information or to submit a question for this column, contact the Ethics Committee staff at ethics@aao.org.