Whether a medical expert is qualified to testify often turns on a particular state statute, says Thomas R. McLean, MD, JD, CEO of American Medical Litigation Support Services in Shawnee, KS.
Factors include where the physician is licensed, board certification status, and whether the physician was practicing at the same time as the alleged malpractice incident.
"There is no question that these vary when you step across the state line," he says. McLean says that experts are rarely disqualified, however, as it can be disastrous for the attorneys involved. "The last thing a plaintiff or defense attorney wants is to hire an expert only to be told the expert isn't qualified," he says. "The case then collapses, and the opponent moves for summary judgment."
Various medical societies also have set forth various rules for expert witness qualifications and conduct, notes B. Sonny Bal, MD, JD, MBA, professor of orthopaedic surgery at the University of Missouri School of Medicine in Columbia. "The testifying expert should be familiar with rules pertaining to a specific venue," he adds.
Time-tested legal mechanisms
Variations in expert witness requirements are unlikely to affect the outcome of malpractice cases, according to Bal, despite the fact that some states have a very low threshold for who qualifies as an expert.
The cross examination of the witness is a powerful and time-tested legal mechanism to test an expert's credibility, he says.
"The foundational knowledge upon which an expert bases the opinion proffered can likewise be tested very thoroughly in court," says Bal.
There is increasing scrutiny of opinions offered during trial litigation, he adds. All such opinions and testimony are in the written record and easily discovered. "This means that the expert must have a thorough understanding of the facts relevant to the case, impartiality, objectivity, and must possess the requisite knowledge to be able to offer an opinion," says Bal.
In his view, requiring experts to obtain limited licensure in states where experts are to testify, so that there can be medical board oversight, is unnecessary. "In our information age, with computerized records and easy search of databases, inaccurate and deceptive expert testimony can be readily identified by interested parties," Bal explains. One example of a database is TrialSmith (www.trialsmith.com), which is available to plaintiff's attorneys through their various state trial lawyers' associations. Lexis/Nexis also has a similar service, (https://idex.lexisnexis.com) now available to any subscriber who pays for the extra service. The trial process itself offers many opportunities for the parties to test the credibility and knowledge of the expert witness.
"To the extent that counsel fail to cross examine an expert witness, that is a problem with the legal procedure itself and unlikely to be cured by increased medical board oversight," says Bal.
