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What makes a physician qualified to offer testimony in court?

In our last post, we began speaking about the case of a surgeon who recently admitted to having lied under oath in a medical malpractice case years ago in order to protect a fellow surgeon from liability. One of the interesting points the surgeon makes in the ProPublica interview is that his act of perjury was only the tip of the iceberg in terms of the attitude physicians had toward attorneys, at least in that place at that time. As he said, the hostile attitude toward the legal profession put pressure on medical professionals to support colleagues who are involved in malpractice litigation, even when they know they shouldn’t.

As the surgeon admitted, his confession is a good example of why you cannot always rely on the testimony of a physician in medical malpractice litigation. As true as this may be, it is nevertheless also true that expert testimony is often an indispensible aspect of building a successful medical malpractice case. Under state law, there are certain standards that have been established to ensure the qualification of physicians who seek to act as expert witnesses, or to sign off on affidavits of merit, in medical malpractice litigation

The standards we are referring to are somewhat lengthy, but can be summarized and simplified as follows:

  • First and foremost, the physician must be licensed to practice in the United States;
  • In cases involving a specialist, the expert physician must be credentialed to treat patients or perform the procedure at issue in the claim, or must be a specialist or subspecialist in the type of care or treatment at issue in the case and meet certain other requirements regarding professional practice activity
  • In cases involving a general practitioner, the expert physician need only be a general practitioner and meet certain time and activity requirements

Courts have the ability to waive specialty or subspecialty requirements under certain circumstances, such as when the expert witness has sufficient training, experience and knowledge to provide testimony. At the same time, courts also have the ability to disqualify expert witnesses on other grounds, such as lack of credibility. A physician who lacks credibility, despite his or her qualifications, could therefore potentially be barred from offering testimony. Thus, it is important to select a witness who is truly qualified and credible.

In our next post, we’ll look briefly at affidavits of merit, their role in medical malpractice litigation, and the importance of working with an experienced advocate. 

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