Key words: Forensic medicine; expert witness; medical practice litigation.

INTRODUCTION

Many people associate forensic work with litigation and testifying in court. In fact, however, most cases do not lead to testimony, and many don’t involve litigation. Evaluating claimants for disability or workers compensation is a common forensic activity. Expert specialists are often asked to evaluate colleagues’ practices for a medical board or organization. Forensic medical consultants may also be retained to work with hospitals (or their attorneys) to assess the need for particular services in a community, review or challenge necessity-of-care decisions, develop plans of correction after an accreditation or certification review, or deal with complex credentialing matters.

All of the above examples share at least three characteristics:

Some physicians believe doctors should stay out of the legal arena, and certainly should avoid matters that could embarrass colleagues or the medical profession. The premise of this article, and that of the legal system as a whole, is that to promote fair adjudication of disputes, the legal system needs experts of all kinds, including medical ones.

The law protects rights, safety, and property. Few would disagree that those protections, and sometimes a balancing of them among conflicting people or entities, are very important—even fundamental—to the way we live. When we look to the law to decide disputes, it is unreasonable to expect judges to understand the nuances of cases involving, for example, accounting, building codes, or standards of clinical care. Juries aren’t knowledgeable enough to weigh complex and conflicting testimony about automobile construction or surgical procedure. Courts have long relied on experts in specialized fields to put complicated concepts into words they can understand. Similarly, lawyers contemplating—or defending against—medically related litigation make better decisions if they consult a qualified physician. Insurance companies need professional consultation to determine extent of injury, medical disability, or necessity of care. Medical boards and health care agencies look to senior physicians for guidance about physician impairment or quality of care. Law enforcement agencies engage specialists to help determine the type and manner of injury or death in criminal cases, and criminal defense attorneys engage specialists to review prosecutors’ medical evidence.

Honest, objective experts are vital to the legal system’s purpose of finding the truth. Good medical experts help to keep the system fair; we should not shirk that obligation.

Forensic practice usually starts with a request by an attorney, judge, insurance company, or government agency to become involved in a case. The request should not be associated with direct patient care. [Note: We aren’t talking here about referrals from lawyers to treat an injured client. Such referrals should be accepted solely for the purpose of treatment, and not in anticipation of “expert” or “opinion” testimony (see elsewhere in this article). It is almost always a mistake (and may be unethical) to be both treating physician and expert witness in such instances.] Physicians should be aware of, and be able to meet, several requirements before accepting a forensic referral. The following list, though fairly long, isn’t exhaustive, but it’s a start.

• Don’t be a pseudo-lawyer. The legal system has plenty of lawyers; it needs your medical expertise. Incidentally, physician-lawyers (those with both M.D. and J.D. degrees) may be nice folks, but they don’t usually make the best medical experts.

• Accept the adversary system of justice. The U.S. judicial system is largely based on the premise that in a fair fight, the truth will emerge victorious. Many of the rules of litigation exist to make the “fight” a fair one. Experts may be retained in an effort to support one side’s view. Very few experts are called to express an opinion as a “friend of the court” (and such “amicus” opinions are rarely nonpartisan anyway).

• Do not mix the roles of clinical consultant/treater and expert (forensic) consultant. There is often a serious conflict between one’s responsibilities to a patient—generally created with the establishment of any doctor-patient relationship—and his or her duty of honesty and objectivity to a court. Both the law and our medical ethics require us to place the interests of our patients above virtually everything else. On the other hand, the lawyers, courts, insurance companies, and the like who depend on our expert testimony expect us to be honest and reliable in our forensic opinions. That means that patients’ treating doctors and clinical consultants should not offer expert opinions in their legal or administrative matters. Similarly, a physician retained to develop an expert opinion should not become involved in a litigant’s or evaluee’s clinical care (except in emergency situations).

• Be sure you are retained by an attorney, court, or other contracting entity rather than a patient or litigant. Forensic experts should almost never be retained directly by an individual patient or litigant. You have a duty to be honest, competent, and objective, but that duty is primarily (but perhaps not exclusively) to the contracting entity (such as an attorney or agency) and to the court rather than to a patient or individual litigant. This is what allows the court to assume that your opinions are objective, in contrast to the direct advocacy expected of a lawyer.

• Know the basic legal requirements of your participation. Understand, generally, the legal rules about your relationship with attorneys, courts, litigants, or claimants, etc. Be aware of rules related to your notes, reports, disclosure, communication, testimony, and the like. When in doubt, ask the lawyer who retained you. He or she will probably appreciate your effort to do a good job.

• Your agreement with the retaining entity (e.g., attorney) should be clear, complete, and established in writing before you do any work on the case. Your task, expectations, limitations, fees, payment arrangements, and the like should be clearly documented, often with a payment deposit.

• Always use a time-based billing process (plus expenses). Never base your fees on the outcome of a case and never agree to postpone payment for forensic services until a case is resolved. Do not accept forensic cases in which the attorney suggests that you will be paid out of settlement or trial proceeds, or by a litigant’s health insurance or managed care policy. Some clinical services (as contrasted with forensic ones and performed by a different clinician) may be provided under a “letter of protection,” which states that the bill will be paid out of the proceeds of a lawsuit or workers compensation claim. This is generally considered unethical and may be illegal for expert witnesses, because it is tantamount to a contingency fee and introduces an unacceptable conflict of interest.

• Preventing payment disputes is far easier than fixing them. In addition, unpaid bills and unclear payment arrangements are not mere practical problems; they may undermine an expert’s credibility. The presence of a substantial outstanding bill when one offers opinions in a report or testimony can suggest that the opinions could be biased.

• Stay within your area of expertise. Don’t get in over your head or testify beyond your knowledge.

• Do not work from inadequate data. Be certain you have access to all relevant records, reserve enough time to study the case, and perform personal examinations as necessary. If some relevant materials are unavailable, provide a comment or disclaimer about how their absence may affect your results. Do not allow an attorney to press you into premature or slipshod findings.

• Be scrupulously honest with the attorney or organization that retains you. Ethical lawyers, insurance companies, and other retaining entities need accurate information, not just comments that support their cases. They will use your findings not only to pursue cases, but also to make decisions about when not to pursue them, or how to modify their strategies. Opinions that cannot be fully defended at deposition or trial are damaging and expensive.

• Be available when case scheduling becomes rigid. Some aspects of forensic consultation, such as reviewing case records, are quite flexible. Others, however, compete with one’s clinical practice and family life. When an attorney has a deadline for your report, or must present you for deposition by the other side, take the scheduling requirements seriously. These are often not only the lawyer’s deadlines, but those of the court or a law related to the case. Cases with short deadlines often interfere with other demands on one’s time. Trial or hearing testimony, in particular, takes precedence over almost everything else. Understand that once you accept a forensic referral, particularly one that involves litigation, you are accepting its possible intrusion on your schedule.

• Be an excellent communicator. The target of your communication is laypersons, often a jury, not other professionals. Forensic reports should be concise, professionally formatted, and extremely well written. Proofread them carefully for clarity, grammar, and typographical errors. Prepare carefully for expert testimony, and testify clearly and concisely. It is sometimes appropriate to “teach” during testimony: do it sparingly. Let the jury know that you take the case seriously (but don’t be too stiff). Don’t be overly humorous or spar with the lawyer for the opposing side.

• Always have a pre-testimony conference with the attorney before depositions or trials. Expert testimony is a complex activity, full of nuances and pitfalls. Even very experienced experts require preparation.

• Understand the difference between “fact” testimony and “expert” testimony. Fact testimony, to which a “fact witness” is limited, conveys things that the witness knows or observes, with little interpretation. An expert witness is allowed to express opinions in reports and testimony, not just observations. Treating physicians are often fact witnesses. They may testify about their personal observations, diagnoses, and care of a particular patient. They are not (or should not be) generally allowed to offer forensic (expert) opinions concerning their patients (e.g., about whether or not their—or someone else’s—practice met the prevailing standard of care).

• Don’t take it personally. It is likely that lots of people will argue with some or all of your findings, no matter how accurate and complete they are. That’s the adversarial way.

• Protect your credibility. Assuming your opinions are sound, your credibility then becomes extremely important. Conduct yourself accordingly, in and out of court and clinical settings. Your professional record should be unblemished. If it is not, your usefulness as an expert is diminished (and you may be publicly embarrassed).

• Be absolutely ethical.

• Never lie.

• Understand the liabilities of forensic practice. Physicians who explore forensic work as a way to avoid malpractice liability may be disappointed. Although expert witnesses have some immunity from legal recourse, it is by no means absolute, and it is eroding. One may be sued for such things as forensic malpractice, misrepresenting one’s abilities, perjury, malfeasance, breach of contract, and several other “causes of action.” In addition, lawyers and litigants (usually, but not always, those on the losing side) can easily file complaints with licensing boards and professional organizations. Groundless or not, defending oneself takes time and effort.

Malpractice insurance may or may not cover forensic work (check your policy). Even when it does, many potential causes of action are unlikely to be covered. Some risks can be minimized with careful practice and understanding of forensic work; others often seem to be matters of serendipity.

There are several ways to acquire forensic knowledge and skills, and to develop a successful forensic practice. One can read, talk with forensic colleagues (and lawyers), join organizations devoted to forensic medicine or science, attend educational meetings, participate in specialized workshops and courses, or even take a forensic medicine fellowship. Practice is a great teacher, but one’s early practice should include supervision or oversight. Other forensic specialists are usually happy to discuss their views and experience with colleagues.