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Ethical Issues of Expert Witness Testimony
Alberto R. Ferreres
� Societe Internationale de Chirurgie 2014
Abstract Being a surgical expert witness (EW) in pro-
fessional liability claims implies ethical responsibilities,
which are usually unknown to the parties who try to obtain
such testimony as well as to the surgeons involved in
providing the expert opinion required by the courts. Giving
medical testimony can be included in the field of surgery
since (1) being an expert medical witness and judge the
performance of another surgeon means that the witness
must have a medical license and preferably be board-cer-
tified as a surgeon, and (2) the EW opinion sets the stan-
dard of care to be applied in each particular case. Thus, the
role of the surgeon EW in the legal arena must have the
same degree of integrity as the surgeon in his practice with
direct patient care and it should be reviewed and subject to
regulation.
Introduction
Giving testimony as a surgical expert witness (EW) in
court carries several ethical obligations and can be con-
sidered an integral part of the practice of medicine and
surgery. The American Medical Association, and many
other medical associations worldwide, considers being an
EW within the scope of medical practice and thus subject
to peer review. Physicians and surgeons should play an
important role in the administration of justice and the
resolution of medicolegal conflicts and in making sure that
a fair opinion regarding medical facts and deeds becomes
part of the judicial process. That role imposes the duty of
having truthful opinions in order for that testimony to be
sound, valid, and objective. Any physician, as a citizen and
a professional with a specific background and expertise,
has an ethical duty to contribute to the administration of
justice in his/her country. He/she must not become an
advocate of any cause and their fee should not depend on
the final outcome [1].
In an adversarial system, such as the justice system, the
role of the EW differs from that of the trial lawyers. The
purpose of the surgeon EW is to explain and make clear to
the judge, the jury, or the lay audience the facts that emerge
from the medical records and whether the surgical care
rendered to the patient was within the scope of an
acceptable standard of care.
The ethics of an EW are important because testimony
that is not ethical (e.g., ungrounded testimony with no
support from clinical facts, or testimony that lacks an
adequate causality link and/or is mistaken and/or incurs a
hindsight bias) may confuse those who depend on it and
thus lead to faulty rulings in the administration of justice
[2].
Malpractice litigation and the role of the expert witness
Malpractice claims against surgeons have spread world-
wide and have affected every field of surgery. Though this
seems to be a very recent phenomenon encountered by
surgeons, it is important to note that about 20,000 physi-
cians had been sued for professional liability in the 1930s
in the US [3].
‘‘The people’s good is the highest law’’ (Cicero, 106-43 BC, De
Legibus)
A. R. Ferreres (&)
Department of Surgery, University of Buenos Aires,
Vicente Lopez 1831 P.B. (1128), Buenos Aires, Argentina
e-mail: [email protected]
123
World J Surg
DOI 10.1007/s00268-014-2641-9
The legal system, both those founded in common law or
in written law (codes), depends on ‘‘experts’’ to advise the
Court and the adversaries about the standard of care pro-
vided in each particular case and if the surgical care pro-
vided had fallen into the realm of malpractice or
negligence. An initial approach distinguishes between
criminal cases, in which someones freedom is in peril, and
civil cases, where the discussion is about harm and repa-
ration. In many countries surgeons encounter professional
liability claims in both jurisdictions, with the risk of being
found guilty in the criminal courts.
In order to be successful, the plaintiff first needs to show
relevant evidence about the following features:
1. Duty of care: standard of care that should have been
provided
2. Breach of the duty of care: occurred when the above-
mentioned standard was not accomplished
3. Causation of harm or disability related to the
infringement.
Accordingly, every claim requires a surgeon to give EW
opinion on these issues.
One of the most important roles in the resolution of
malpractice litigation claims is the one played by the sur-
geon EW. The primary purpose of a trial is to discover and
clarify the truth; this objective supports the central ethical
duty of a surgeon as an EW, i.e., to provide an adequate,
fair, and unbiased justification for their position [2]. The
courts consider the EW an individual with a special
background, expertise, skill, or knowledge in a specific
field. An EW is different than a fact witness, who testifies
about what was seen, heard, or experienced. On the other
hand, an EW provides the court his/her expert opinion in a
particular field.
The surgeon EW has to
• Provide a sound opinion about the achievement of
malpractice in a particular situation
• Define the standard of care according to the
circumstances
• Specify whether the behavior of the surgeon in that
particular case was within the previously defined
standard of care
• State the harm suffered by the patient and the degree
and characteristics of the disability caused, if any
• Give details about the topographical, chronological,
and causal relationships between the surgeon’s activity
and the final clinical outcome
The ‘‘expert’s’’ qualifications and background should be
assessed and accepted by the jury before the EW’s opinion
is given. This requires (1) certified maintenance of com-
petence, (2) accredited expertise in the particular field to be
discussed, and (3) the ability to inform those involved in
the trial of their conclusions accurately and clearly.
The qualifications to be a surgeon EW include:
i. Professional competence: the surgeon EW should be
proficient, an expert, and knowledgeable in the field
of interest, with a proven background and currently
active in the field. He/she should accept an invitation
to be an EW in matters in which their expertise is
limited
ii. Intellectual accuracy: the same standard applies to
the courtroom opinion as it does to everyday surgical
activity
iii. Adequate data analysis: he/she should consider all
relevant data and weigh and analyze the facts in an
objective and reliable fashion
iv. Methodology should be clearly stated and available
upon request
In many countries, each side hires its own expert, while
in other judicial systems these experts coexist with official
experts appointed by the courts, securing impartial and
unbiased opinions [4].
Surgeons traditionally mistrust the judicial system as an
arbitrator of medical disputes because of the different
points of view of each side: The legal system tends to have
a black-and-white Manichean outlook while physicians
rely on scientific and empirical methods to reach conclu-
sions and approach issues regarding probabilities and
possibilities of an event to occur. Determining what is the
correct ethical and legal testimony is no easy task for the
surgeon EW. The truthfulness of the testimony as well as
its reliability are affected by the facts of the case, as well as
the qualifications, motives, bias, and interests of the EW
[5].
The EW’s report should be based on the analysis and
review of all medical records and facts provided during the
trial. Such a task faces inherent restrictions since each EW
may use individual and nonstandardized criteria to assess
and judge the quality of surgical care, the surgeon’s
actions, and the breach of the standard of care. There are
EWs who are particularly tolerant in their judgment of
surgical care while others use stricter criteria. Some studies
report moderate to poor agreement among surgeons when
confronted with adverse and negligent adverse events after
reviewing and analyzing the medical records [6, 7]. These
disagreements cause concern for all involved in the
administration of justice, where reliability and fairness is a
priority for all [8].
The standard of appropriate surgical care ‘‘What
exactly is your understanding of the standard of care?’’ This
question is of paramount importance when asked of a sur-
geon EW and it may invoke different interpretations [9]:
World J Surg
123
• Whatever the EW decided it to be
• Whatever the EW report describes
• In hindsight, the surgical therapy that would have
offered the best possible outcome
• Whatever most surgeons would have decided and
performed in a similar case
• A sometimes complex concept that is usually badly
understood by colleagues but which offers its best
version when an unbiased surgeon EW accurately
details it with the support of evidence-based references
The concept of standard of care is of paramount
importance to determine the surgeon’s failure to fulfill his/
her professional duties to the patient. The standard of care
may be defined as the prudence, care and adequate dili-
gence, clinical judgment, ability, skill, and competence that
should be displayed by a reasonable surgeon in his or her
duty of caring for a particular patient and the particular
situation with respect to location, persons, and resources.
The standard of care includes the assessment of the surgical
informed consent process, the surgical indication, the
operative performance, the right and thorough postopera-
tive follow-up, and the avoidance of errors. The failure to
meet the standard of care may increase the grounds for
negligence, and the harm (death, disability) that results
from it is the basis for a professional liability claim.
When a surgeon EW decides what the standard of sur-
gical care is, he or she will analyze in detail the circum-
stances of where, when, and how that specific surgical care
was delivered, which is of paramount importance in the
resolution of the judicial conflict. As mentioned before, the
primary aim of any trial is to find the truth and achieve the
right outcome. Thus, some considerations must be kept in
mind when pursuing or defining the truth of a medical fact,
since truth may be elusive and very difficult to define.
What is the correct and adequate knowledge? From an
epistemological point of view, three concepts must be
considered: belief, truth, and justification. Belief is an
individual faith and conviction regarding the truth of a
proposition. Truth is considered to be reality and includes
the meaning of veracity. Justification explains the basis or
motives for believing [10]. For example, when confronted
with a case of hospital-acquired postoperative pneumonia,
the surgeon EW can consider this event a result of (1)
patient immune system incompetence, (2) unwitnessed
events, like aspiration of food into the lungs due to several
causes, (3) inadequate nursing care, or (4) myriad of other
factors. The EW may find it difficult to define the truth
about this case of pneumonia. It may the result of a mis-
take, a preventable adverse event, or even both. In addition,
two assumptions may be at play, preventing an accurate
approach to what was the real cause for a particular
outcome:
1. The assumption that a faulty process necessarily leads to
a poor outcome. If a proper procedure is not followed,
observers may be more likely to conclude that a poor
outcome was the result of the procedural flaws and
therefore a mistake. These flaws may overshadow other
aspects of the patient’s course that may in fact have
played a greater causal role in the bad outcome.
2. The assumption that a poor outcome must come from a
faulty process even if no errors are identified. If the
outcome is poor, it might be presumed that an error
must have occurred but has yet to be identified.
It is important to understand that the activity of the sur-
geon EW is always retrospective and he/she can use the
knowledge of the postoperative course and the final out-
come, while the surgeon’s everyday activity is prospective
and with a total lack of knowledge about the future post-
operative course and eventual complications or adverse
events. Besides, the EW will need to rely on the medical
records, registered by the defendant surgeon or his team [7].
The surgeon EW testimony should comply with the
following requirements:
– Integrity
– Honesty
– Impartiality
– Justice
– Confidentiality
– Respect
– Equality
– Transparency
The historical background of the admissibility of the
testimony of the EW in the US court system includes the
following landmark cases:
– The Frye Decision (1923): the District of Columbia
Circuit held that ‘‘evidence could be admitted in court
only if the thing from which deduction is made is
sufficiently established to have gained general acceptance
in the particular field in which it belongs.’’ The issue was
related to a systolic blood pressure test, a forerunner of
the polygraph and not widely disseminated at the time.
– The Federal Rules of Evidence (1975) established the
following guidelines: ‘‘…if scientific, technical or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill,
experience, training or education, may testify thereto in
the form of opinion or otherwise…’’
– The Daubert Standard (1993) is a US Supreme Court
case that defined the standard for admission of expert
testimony in federal courts. The evidence presented in
this case was based on in vitro and in vivo animal
World J Surg
123
studies, methodologies with scarce acceptance. Though
it was initially dismissed by the Ninth Circuit Court of
Appeals, it was recently accepted by the Supreme
Court. Acceptance of the standard has been useful in
excluding frivolous judgments, enabling the judges to
warrant relevant EW opinion based on accepted
standards of knowledge.
– Kumbo Tyre Company v. Carmichael (1999) decision
represents an expansion of the Daubert standard and
requires the expert (a technician in this case) to rely on
the same intellectual accuracy that he would do in his
everyday work
Ethical issues and considerations
The principles of biomedical ethics as collated by Beau-
champ and Childress and addressed by the Belmont Report
have become one of the most widely used frameworks
when considering bioethical issues and analyzing ethical
situations in medicine, and EW testimony, as discussed
above, is a medical field and activity [11]. In addition to the
four classic ethical principles, truthfulness, fairness,
integrity, dignity and respect of people’s rights, and hon-
esty should be added, all of which have a heavy impact in
the court setting. The four classic principles are:
1. Autonomy: Since there is no direct EW-patient
encounter, we must stick to the autonomy of the
surgeon EW in his or her role. Autonomy, which is
derived from the Greek autos (self) and nomos (rule,
governance, law), refers to the original self-determi-
nation of city-states in Greece.
2. Beneficence are acts of mercy, kindness, and charity
and involves the principle of acting with the best
interest of the other in mind.
3. Nonmaleficence is based on the dictum Primun non
nocere (above all, do no harm) and requires intention-
ally refraining from actions that would cause harm.
4. Justice: Aristotle first conceptualized justice as the
‘‘rendering to each individual of what is due to him or
her’’ and refers to the development of fairness and
equality. In his ‘‘Theory of Justice,’’ Rawls [12] argues
that a social arrangement is a communal effort to
advance the good of all in society.
Sir David Ross (1877-1971) was the first to outline the
prima facie ethical duties: fidelity, reparation, gratitude,
promotion of a maximum of aggregate good, and nonma-
leficence [13]. Not all of these duties have the same level of
importance. In Ross’s reasoning, the duty of nonmalefi-
cence is more important than promoting a maximum of
aggregate good and the duties of fidelity, reparation, and
gratitude are more preeminent than promoting maximum
good.
There are four elements that are basically good: virtue,
knowledge, and pleasure, which are considered states of
mind, and justice, which represents the relationships
among the first three. His goal was to illustrate that moral
decision-making sometimes requires us to think about the
past and act according to a sense of duty rather than focus
on the projected outcome, following the Kantian ‘‘moral
imperative.’’ His duties- based (deontological) ethics
served as a foundation for the work of Beauchamp and
Childress. Many professional associations have informed
their membership of the ethical guidelines to follow when
chosen to be an EW [14, 15].
From a surgical ethics point of view, it is important to
remember that the ethical duties of a surgeon EW stem
from these two points: (1) there is an implicit social and
moral contract among the members of the surgical pro-
fession, which includes the surgeon’s responsibility to
society, to surgery as a whole, and to the self-regulation of
the surgical profession; and (2) the professional obligation
to use the body of scientific knowledge entrusted to sur-
geons to the serve others. The ideal situation should be that
the EW plays the role of a public trust, but it should be the
public’s concern to know whether the legal system is
addressing its moral and ethical responsibilities.
Another dimension of the EW ethics is the relationship
of the surgeons, their associations, and the society to which
they belong. The EW not only acts as an individual but
conveys the moral authority of the knowledge his or her
profession has about different topics in the field where they
supposedly achieve expertise and wisdom. The role of the
EW is to provide the required expert knowledge to those
who will judge other surgeons’ conduct and behavior and
help them fully understand the medical facts of a particular
case.
The surgeon EW must approach every case with
autonomy and an impartial view. A focused and ethical
expert should dissect the facts and data systematically,
objectively, and dispassionately, without regard to the
consequences to any side. The EW needs to be independent
and not interested in the outcome of the trial and keep in
mind that the required expert opinion needs to be objective
and truthful [16]. These issues bring up two key consid-
erations regarding the role of experts in the judicial system:
the failure to present satisfactory evidence to support their
opinion and the failure to reveal their whole understanding
of a particular case, which would prevent a sustainable
ruling.
Being the EW for one of the parties in litigation raises
issues of self-interest, which may affect the expert, thus
incurring bias and distortion. The EW should be prevented
World J Surg
123
from doing so, and the courts and the society need to play
an active role to correct the situation; otherwise, the expert
may be viewed as a ‘‘hired gun’’ or ‘‘assistant advocate.’’
The EW report, if inaccurate or of poor scientific qual-
ity, should undergo proper review and the EW should be
subjected to sanctions according to the degree of breach.
The final result of their activity may be appealed and if the
result corresponds to that of the last review, the EW may be
charged of false testimony or even professional liability. In
addition, the conduct of the EW may be judged by the
standards and regulations of the local, regional, or national
surgical societies to which the EW may belong. In fact, a
number of surgical associations have established codes of
conduct and recommendations for their members who
perform the task of EW [17]. Sanders pointed out some
conflicting situations regarding EW ethics [2]:
– When there is doubt regarding the role, usefulness,
reliability, credibility, and sound judgment of the
surgical EW
– Adoption of different standards and criteria for con-
clusions than the EW would otherwise use in their
everyday surgical activity.
– Solve ethical conflicts that occur in the function of the
EW
– What can be done to raise ethical standards since
sanctions are unlikely to improve the situation.
In their judicial activity, forensic EWs are supposed to
avoid unethical conduct, which is very difficult to define.
What is the benchmark by which to judge the ethical
behavior of the EW?
The foundation of ‘‘an acceptable professional behav-
ior’’ lies in the code and principles of the ethics of the
surgical society to which the EW agrees. Unethical conduct
by a surgeon EW should be promptly assessed and, if
appropriate, penalized. Sanctions may range from a warn-
ing to suspension of membership to the society, with pos-
sible loss of license, accreditation, or board certification.
The most noteworthy case in the US is Austin v. American
Association of Neurological Surgeons (2001). Dr. Donald
Austin considered his membership in the above-mentioned
professional association wrongfully interrupted for
6 months due to his testimony in a medical malpractice
case. He alleged that the association did not have the
authority to take this action, but the Court disagreed stating
that ‘‘this kind of professional self regulation furthers
rather than impedes the cause of justice.’’ Many similar
cases have followed this trend worldwide.
Ethical complaints against the professional practice of
the EW fall within certain categories [18, 19]:
1. Inaccuracies and deceit in the EW’s resume and
background leading to inaccuracies about training and
expertise, including misrepresentations and/or
misstatements.
2. Incompetence and lack of sound diligence in commit-
ting to the expert report. Reliability and serious
scientific and rational conclusions grounded in evi-
dence-based medicine are a must, especially when the
consequences of the EW opinion are taken into
account.
3. Manipulation and bias in the management of data,
facts, and conclusions.
4. Conflicts of interest in any possible sense.
One of the main goals of an ethical EW is to provide
impartial testimony and demonstrate scientific and irre-
futable knowledge. Thus,
i. The EW needs to be an impartial educator to the
administration of justice on the subject being
litigated.
ii. The surgeon EW shall perform a thorough assessment
of all the data and medical records and, when
necessary, ask for detailed and additional information
in order to get the whole picture of the clinical case.
iii. The surgical EW will adopt the position of a prudent
and average surgeon of the same level as that being
litigated against and illustrate the different view-
points, therapeutic options, and decision-making
processes when confronted with a clinical case.
iv. The EW should refrain from considering his/her
personal surgical preferences and/or management as
the accepted standard of care.
v. The surgeon EW will recognize, present, and
illustrate the full standard of surgical care and
present in a reasonable and accurate way the
relationship between surgical performance (preoper-
ative, intraoperative, or postoperative) and the stan-
dard of care.
Conclusions
The surgeon EW is confronted with ethical dilemmas while
in court but the same ethical principles that apply to clin-
ical practice must apply when testifying as an EW. The EW
has responsibilities to the courts, to the surgical associa-
tions, and to the society as a whole, including:
A prevailing duty to illustrate, give professional guid-
ance, and advise the courts about the surgical facts of the
particular case being litigated
Fairness and justice of the proceedings
His or her demeanor should be characterized by pro-
fessionalism, excellence, truthfulness, thoughtfulness,
introspection, and fairness
World J Surg
123
The definition of the standard of care is of the highest
importance and lies at the core of the ethical response to
the professional liability claims
References
1. Andrew LB (2006) Expert witness testimony: the ethics of being
a medical expert witness. Emerg Med Clin North Am 24:715–731
2. Sanders J (2007) Expert witness ethics, 76 Fordham Law Rev.
1539 (2007). Available at http://ir.lawnet.fordham.edu/flr/vol76/
iss3/10 (accessed 20 Nov 2013)
3. Stetson HG, Moran JE (1934) Malpractice suits, their cause and
prevention. N Engl J Med 210:1381–1385
4. Bal BS (2009) The expert witness in medical malpractice liti-
gation. Clin Orthop Relat Res 467:383–391
5. Kadane JB (2005) Ethical issues in being an expert witness. Law,
Probability and Risk 4:21–23
6. Posner KL, Caplan RA, Cheney FW (1996) Variation in expert
opinion in medical malpractice review. Anesthesiology
85:1049–1054
7. Thomas EJ, Lipsitz SR, Studdert DM, Brennan TA (2002) The
reliability of medical record review for estimating adverse event
rates. Ann Intern Med 136:812–816
8. de Reuver PR, Dijkgraaf MGW, Gevers SKM et al (2008) Poor
agreement among expert witnesses in surgical malpractice liti-
gation. Ann Surg 248:815–820
9. Jones JW, McCullough LB, Richman BW (2004) Standard of
care: what does it really mean? J Vasc Surg 40:1255–1257
10. Williams M (2001) Problems of knowledge. A critical introduc-
tion to epistemology. Oxford University Press, Oxford
11. Beauchamp TL, Childress JF (1994) Principles of biomedical
ethics, 4th edn. Oxford University Press, New York
12. Rawls J (1999) A theory of justice, rev. ed. Harvard University
Press, Cambridge
13. Ross WD (1930) The right and the good. Oxford University
Press, Oxford
14. Cohen FL (2004) The expert medical witness in legal perspective.
J Leg Med 25:185–209
15. Gorney M (2003) Expert witnesses caught in a moral and ethical
dilemma. Bull Am Coll Surg 88:11–14
16. Spencer FC, Guice KS (2000) The expert medical witness: con-
cerns, limits and remedies. Bull Am Coll Surg 85:22–23
17. Jones JW, McCullough LB, Richman BW (2008) The ethics of
surgical practice: cases, dilemmas and resolutions. Oxford Uni-
versity Press, New York
18. Hammond CB, Schwartz PA (2005) Ethical issues related to
medical expert testimony. Obstet Gynecol 106:1055–1058
19. Kassirer JP, Cecil JS (2002) Inconsistency in evidentiary stan-
dards for medical testimony. JAMA 288:1382–1387
World J Surg
123