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: albertoferreres@gmail.com

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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]:

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• 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

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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

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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

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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

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