An expert witness is a professional who provides testimony in a court of law based on their field of expertise. Pediatricians can become involved in expert witness work by speaking with colleagues who are experienced, as well as by reaching out to attorneys in their community to offer their expertise and assist them with their evaluation of a case. Pediatricians who choose to serve as expert witnesses can provide unique service to their communities by providing insights into pediatric health and well-being and fulfilling their role as patient advocates. In this post, we’ll explore how pediatricians can function as expert witnesses and share the experiences of one pediatrician who has served as an expert for many years.
Becoming a Pediatric Expert Witness
According to the American Academy of Pediatrics, pediatricians “have the professional and ethical duty to assist in the legal process when medical issues are involved.” The AAP also recommends that pediatricians who wish to serve as expert witnesses have the minimum qualifications of board certification; that they be a practicing physician, or if retired, that they remain knowledgeable about standards of care; and that they provide testimony only on subjects within their speciality or subspecialty.
It is crucial that expert witnesses rely on their unbiased, logical and scientific experience in their testimony. The expert must “take all necessary steps to provide expert work that is relevant, reliable, honest, unbiased, and based on sound scientific principles” to ensure the proper carriage of justice. In the case of an expert witness, the pediatrician’s role is to serve as a representative of the medical body of knowledge and their experience in the medical field, and to advocate for the facts, as opposed to the defense or prosecution.
What Makes Good Pediatric Testimony?
Good testimony in court will depend on the pediatrician’s ability to provide clear, candid, and defendable expertise for the case in which they are called to witness. In jury trial cases, the AAP recommends that experts explain their case in simple terms, meet the jury’s gaze, be honest and candid about compensation for their time, and not to rely on policy, textbook definitions, or peer-reviewed articles as the end-all, be-all of their testimony. The expert witness must also be familiar with the standard of care of the issue involved in the case (which is a legal term, not a medical one). It is defined as the level of skill, care and treatment which would be used by a reasonably prudent, similarly trained healthcare provider acting in similar circumstances.
In a bench trial, or a case without a jury, the expert witness’s role is similar:
In federal court and most state courts, the trial judge acts as a gatekeeper, and will apply the Daubert standard to determine whether an expert’s testimony is based on scientifically valid reasoning The Daubert standard has five factors:
- Whether the theory or technique in question can be and has been tested;
- Whether it has been subjected to peer review and publication;
- Its known or potential error rate;
- The existence and maintenance of standards controlling its operation; and
- Whether it has attracted widespread acceptance within a relevant scientific community.
The AAP also notes that experts engage better with juries when they come across as compassionate, caring, and approachable, and when they have testified in support of both plaintiffs and defendants. In this way, self-representing as a pediatrician within the context of experience, community, and knowledge base allows the court to depend on the honesty of the expert’s opinion while acknowledging their compassion for the pediatrician’s role as patient advocate.
Dr. Jesse Hackell, who recently retired from clinical practice in New York after 41 years, has worked as an expert witness in pediatric cases for over 35 years, beginning when a patient’s father asked if he would review a case for his firm. He has reviewed hundreds of cases, and has testified in court a few dozen times. “My goal is to educate the people involved–the attorneys who have engaged me, and the judge and jury when a case goes to trial,” said Dr. Hackell. “That education should ideally inform a defense attorney whether their client met the standard of care, and whether a case is defensible or not, as well as showing the plaintiff attorney whether their case has merit, all based on the facts of the record.”
The goal of a medical liability proceeding is not to be punitive, but rather to compensate patients who have been harmed by care below the standard, while at the same time exonerating physicians who may have had an adverse outcome but who nevertheless provided appropriate, quality care. “The pediatrician has the unique and specialized perspective to be able to determine these issues, and can provide a service to all parties to help them meet this goal,” said Dr. Hackell.
There are other benefits to the pediatrician serving as an expert witness, besides advocating for fair compensation when appropriate. “Expert witness work can be a lucrative side gig for the pediatrician,” notes Dr. Hackell, but he feels that far and away the biggest advantage for the pediatrician is that it is usually an educational experience. “ There is not a single case that I have reviewed which has not taught me something that I could be doing better in my own practice,” he said, “ because it is easier and less traumatic to learn from the errors and omissions of others than to have to experience a lawsuit oneself.”
This post was co-written with Jesse Hackell, Chair, AAP Committee on Practice and Ambulatory Medicine; President, Chapter 3, New York State AAP; Clinical Assistant Professor, Department of Pediatrics, New York Medical College.