Serving as Expert Witness: Risk Management Issues

You may have considered or have served in the role of an expert witness in a legal matter. There are a few scenarios in which this can occur: you are a treating physician and a lawsuit develops in which you are asked to provide an expert opinion by virtue of your role as the treating psychiatrist; you are a treating psychiatrist who either treats a parent or a child involved in a child custody matter and are asked to provide your expert opinion regarding custody, visitation, or a parent’s fitness; or you are retained by a plaintiff or a defendant in a lawsuit to opine on the standard of care. In any of these roles, there may be payment for your time and expenses, court involvement, and considerable time away from your ongoing practice.

The Federal Rules of Evidence has legal requirements concerning qualifications and testimony of an expert witness, which are the following:

• The expert’s scientific, technical, or other knowledge will help the judge/jury to understand the evidence or determine a fact in the matter.

• Testimony must be based on sufficient facts or data.

• Testimony is the product of reliable principles and methods.

• The expert has reliably applied the principles and methods to the facts of the case.

• When contacted by an attorney on a legal proceeding to potentially serve as an expert, although the issue may be interesting and the payment may be significant, a number of issues should be considered. They include the following:

• Is this a matter in which you want to be involved?

• Do you have sufficient education, training, and experience in the area?

• Is this an issue that could impact your patients and/or practice?

• Will testifying create problems in the future?

• Have you previously provided conflicting testimony on another matter?

• Does your malpractice policy cover you for your role and/or testimony on the matter?

Be aware of the ethical rules when serving as an expert witness. It is important to review the AMA, APA, and, if applicable, the Code of Ethics of the American Association of Child and Adolescent Psychiatry. It is always best to have as much information as possible about the care that was provided. In addition, you may likely be asked to examine testimony provided during the legal proceeding that may or may not affect your opinion.

You may begin to review a case and determine that you are not able to support the position of the hiring party. Once this is determined, continuing to do so could certainly be problematic. The attorney who sought your expert opinion may examine your opinion to determine the strength or weakness of the case. In that instance, the attorney may decide not to “disclose” your opinion to the other side or the court as it may weaken the attorney’s position.

There are many issues to consider when asked to serve as an expert. Be sure to determine your obligations and role when considering whether to review a case. Know whether you may be expected to provide deposition or court testimony. It is also equally important to determine whether you have a professional liability policy that covers your role. If you have questions regarding this, it is important to contact your professional liability insurer. ■