An article entitled Ethical Challenges for the Medical Expert Witness in a recent issue of the AMA Journal of Ethics poses a hypothetical problem and asks expert medical witnesses to consider their ethical duties if they find themselves in a comparable situation.
The article poses the following hypothetical problem. A behavioral neurologist who occasionally testifies as an expert witness is asked to review the records pertaining to a personal injury victim who sustained a head injury. The victim was exiting from a parking lot when a truck collided with her vehicle. The victim’s attorney wants the neurologist to determine whether the collision was the most likely cause of the victim’s chronic headaches and cognitive dysfunction.
The medical records are ambiguous. Neither the police report nor the reports of the paramedics who arrived at the scene suggest that the victim was confused or disoriented. The records do not clearly state that the victim lost consciousness. A loss of consciousness and a period of confusion or disorientation are typical symptoms of a mild traumatic brain injury. The expert worries that if she testifies, she will need to reveal her concern that the documents do not clearly establish a loss of consciousness or confusion, facts that might undermine the belief that the victim suffered from a traumatic brain injury. She wonders if she should reveal her concerns to the attorney who hired her, or if she should simply decline further participation in the case.
Consequence of Providing an Expert Opinion
The authors of the article suggest several considerations that should guide a physician’s ethical judgment about acting as an expert witness. The first requires the physician to consider the consequences to the parties. Testifying that the victim suffered from a mild traumatic brain injury, when the expert doubts that the facts establish such an injury, would undermine the victim’s case, might prolong the litigation, and could cause the victim to suffer further stress as she pins her hopes on unachievable goals.
The expert could also experience professional consequences from giving less than honest testimony, including sanctions imposed by a state licensing board. She might also be sued by the trucking company if she provides false testimony that causes a judgment to be entered against it.
Of course, all of those concerns could be alleviated if the expert testifies truthfully. It seems self-evident that the expert should share her concerns with the attorney who hired her. If the attorney still wants her to testify, she should make clear that she does not know whether the victim did or did not lose consciousness or whether she appeared to be disoriented. She was not present at the accident scene and only the eyewitnesses who were present would have that knowledge.
It is up to the jury, not the expert, to decide the facts of the case. The expert is free to give conditional testimony if she chooses. In other words, the expert can make clear that her opinion is conditioned on certain facts being true, and that she cannot be certain whether the evidence will prove those facts.
The authors suggest that the expert’s opinion would not satisfy the Daubert standard for the admissibility of expert witness testimony. They suggest that:
- The testimony is not based on sufficient facts.
- The testimony would not be based on reliable principles and methods.
- The expert cannot reliably apply scientific principles to the facts of the case.
Whether the authors’ Daubert analysis is correct depends upon the testimony that the expert would give. Whether expert testimony is admissible under Daubert is for the court to decide, not the expert. Whether the attorney will want the expert to testify, after being advised about the expert’s honest opinion, is a question for the attorney to answer, not the expert.
Experts in most states are entitled to answer hypothetical questions. The expert might be asked a question along these lines: “Assuming the victim lost consciousness and experienced disorientation after the accident, do you have an opinion whether the victim’s current headaches and cognitive dysfunction were caused by the accident?” It would then be the attorney’s responsibility to introduce evidence to support those assumptions, which might come from the victim herself.
It is not unethical to give an honest answer to a hypothetical question. An expert neurologist is not a detective. Police reports are not always accurate and conflicting recollections are not uncommon. The expert should disclose her reservations to the attorney who hires her, and if the attorney points to facts suggesting that the victim suffered disorientation and a loss of consciousness shortly after the accident, the expert should feel free to render an opinion based on those facts, while acknowledging in her testimony that whether those facts are true is for the jury to decide.
The best advice in the journal article comes from the American Medical Association:
The AMA Code of Medical Ethics Opinion 9.07 expressly states that physicians who serve as expert witnesses must deliver honest testimony grounded in “recent and substantive experience or knowledge in the area in which they testify, and be committed to evaluating cases objectively and to providing an independent opinion.” … The opinion also states that physicians cannot let financial concerns drive the nature of testimony, and it calls on medical professional societies and state licensing board to sanction those who give false or misleading testimony.
In other words, an expert should be competent to render an opinion and should do so honestly. As long as an expert witness follows those simple rules, the expert should have no difficulty meeting ethical standards.