The Physician as Expert Witness

• Author: Samuel D. Hodge, Jr./Jack E. Hubbard
• Profession: Skilled litigator, is chair of the department of legal studies at Temple University/Professor of Neurology at the University of Minnesota
• Pages: 735-744

The Physician as

Expert Witness

Samuel D. Hodge Jr. and Avi J. Cohen

If the law has made

you a witness, remain

a man of science;

you have no victim

to avenge, no guilty

or innocent person

to convict, ruin or

save. You must bear

testimony within the

limit of science.

Dr. Paul C.H.

Brouardel

(1837–1906)

16

The following exchange took place during cross-examination of a medical expert by

defense counsel:

Q: Doctor, you stated on direct examination that the plaintiff’s herniated disk is a

direct result of the automobile accident. Did you ever treat the plaintiff before the

incident?

A: No.

Q: So, you have no idea of the condition of his back shortly before the accident, right?

A: The patient told me he had no prior back problems.

Q: Did you contact his family doctor or obtain that physician’s records to verify that

the plaintiff had no prior back problems before forming your opinion?

A: No. It was not necessary.

Q: Doctor, did you at least review the patient’s medical records from the other

physicians who treated him for his accident-related injuries?

A: I did not have to look at any other records to form my opinion. I have treated

back patients for 25 years, and I saw this patient for his accident-related injuries.

Therefore, I am more than qualified to form a belief as to the cause of his herniated

disk.

Has this physician run afoul of any ethical rule regarding expert witness testimony

issued by the medical board to which this doctor belongs, and can this physician be

sanctioned by that organization for failing to review all of the patient’s relevant medical

records before appearing in court? The answer, in many instances, is yes. The informa-

tion needed to treat a patient is very different and less strenuous from that which is

required, specifically in terms of documentation, to form an opinion in a legal proceeding

that passes ethical muster. This chapter provides an overview of the additional require-

ments involving expert testimony and offers practical tips on how these rules can be used

by attorneys during the course of litigation.

The Practice of Medicine Includes Testifying in Court

The role of a physician today is much more complex than it was years ago. Govern-

ment and insurance regulations permeate the practice of medicine, and physicians are