Professional associations often create standards governing the conduct of their members, including guidelines for testifying as an expert. Sometimes the guidelines appear to be based on the concern that an expert might testify against other members of the same profession in a lawsuit that alleges professional malpractice. Guidelines should never discourage experts from giving honest testimony in order to shield other professionals from responsibility for their mistakes.
The American Academy of Pediatrics (AAP) recently revised its guidelines for expert witnesses. It is to the organization’s credit that it recognizes the need for pediatric experts to lend their knowledge, experience, and best judgment” to the judicial system, regardless of the side of the dispute for which they testify.
It is also to AAP’s credit that the organization recognizes that pediatric experts have given testimony in alleged “shaken baby” cases that may be responsible for sending innocent parents to prison. The revised guidelines specifically address that issue.
Ethical Guidelines for Expert Witnesses
One always hopes that expert witness guidelines are meant to encourage ethical behavior, not to discourage professionals from testifying against other professionals. Professional guidelines are sometimes motivated by unfair criticism of expert testimony, such as the following comment in an article written by a doctor:
But, there is an ethical conflict for the expert who is paid to testify; promoting the outcome of a legal case by testifying leads to increased visibility and marketability of the expert; potentially leading to more income.
One might just as easily say that there is an ethical conflict for doctors who are paid to practice medicine, because those who obtain a good outcome for their patients will be able to market themselves more effectively and earn extra income. The doctor’s comment might be taken as evidence that doctors should stick to practicing medicine, not to opining on the legal or ethical standards that apply to courtroom testimony.
Being paid does not create an ethical conflict. Slanting testimony in exchange for money is unethical (as is pretending to cure an incurable disease in exchange for money), but there is nothing unethical about giving honest testimony (or medical treatment) in exchange for a payment. That’s how capitalism works.
To his credit, the doctor who wrote that article recognized that “[a]rguably, ethical conflicts may also exist for professional associations who discipline their members” because the disciplinary bodies may want to “protect [their members] from lawsuits.” It may be more than “arguable” that some professional organizations are more focused on protecting their members than on promoting the ethical behavior of expert witnesses.
As long as an expert is competent to render an opinion and does so honestly and reasonably in light of all the facts, the expert is behaving ethically. And since the legal system depends on experts to hold members of a profession accountable for their mistakes — and to exonerate them when they made justifiable mistakes or none at all — no ethics code should ever be used to discourage an expert witness from giving honest and reliable testimony.
AAP Announces Revised Guidelines
The new guidelines announced by AAP recognize that “pediatricians have ethical and professional obligations to assist in the civil and criminal judicial processes” and that they serve the public interest by providing “scientifically sound and unbiased expert witness testimony.” The policy statement “bolsters the requirements for expert testimony and provides new guidance on ways to prevent irresponsible testimony in medical liability proceedings as well as in child abuse cases.”
Expert testimony in child abuse cases has been questioned because experts have often attributed injuries to “shaken-baby syndrome” that may have been caused by accidents that were unrelated to abuse. Recognizing that many of the experts who claimed to recognize “shaken-baby syndrome” had not researched other potential causes of the brain injuries they observed, the AAP policy statement suggests that pediatricians should not testify about child abuse unless they have been trained in that subspecialty.
The policy also requires retired pediatricians to keep current on medical literature if they testify as expert witnesses. That requirement is particularly important in child abuse cases since recent studies have concluded that “there is no solid scientific evidence that a specific pattern of head injuries is incontrovertible evidence on its own of child abuse.” Retired physicians who don’t keep up with the literature may be unaware of those studies.
Whether the AAP’s policy will be enforced remains to be seen. Many pediatricians continue to testify about shaken-baby syndrome and, while some UK experts have faced disciplinary proceedings for doing so, AAP does not have a significant record of policing pediatricians who give unreliable testimony that causes innocent people to be convicted of crimes.
Standards of Testimony
In most respects, the AAP’s standards for testifying should be uncontroversial. They provide reasonable, common-sense rules that experts should easily be able to follow, including:
- Experts should give the same truthful testimony and objective analysis of the facts regardless of whether they testify for the prosecution/plaintiff or only for the defense.
- Experts should base their conclusions on all available medical records and should call attention to any gaps in the medical documentation.
- Experts should not ignore or disregard relevant evidence for any reason “and certainly not to create a perspective that favors” either party.
- Experts should use their best judgment to form opinions based on their knowledge and experience and should not express opinions as to matters that are outside of their expertise.
Other common-sense standards suggest that experts should not exaggerate their credentials in advertising or in testimony, should not agree to work for a contingent fee, and should make sure that their insurance covers expert testimony.
More problematic is the requirement that an expert contact his or her employer “to ascertain the organization’s policy” regarding expert testimony. An expert might want to do that to avoid being fired, but how an employer feels about expert testimony says nothing about the ethics of the witness.
Also problematic is the requirement that experts charge fees that are “reasonable and commensurate with the time and effort involved at the prevailing market value.” If an attorney agrees to pay a requested fee, that agreement establishes the market value of the expert’s services. The assumption is apparently that experts will slant their testimony if they are paid too much, but that is a cynical view. Like everyone else, experts charge what the market bears, and it should be rare for a fee to be deemed “unreasonable” simply because it is higher than other experts might charge.