Affirmations of Expert Witnesses in Medical Malpractice Actions
December, 2004
Recently, the American College of Surgeons recognized that many Fellows serve as expert witnesses in medical malpractice actions. The American College of Surgeons has recently prepared a form Affirmation for experts to sign and provide to the attorney representing the party on whose behalf the expert intends to testify. In April, 2004, the American College of Surgeons sent a letter and the referenced form to all members outlining the Affirmation and stating that it was for voluntary use by members who wish to make explicit their commitment to knowledgeable and ethical expert witness testimony. Members were told that the Affirmation can be used to examine the witness at trial and can also be used against them about their failure to do so.
In essence, the Affirmation declares that the expert: 1) will always be truthful; 2) will conduct a thorough, fair and impartial review of the facts and medical care provided, not excluding any relevant information; 3) will provide evidence or testify only in matters which the expert has relevant clinical experience and knowledge in the areas of medicine that are the subject of the proceeding; 4) will evaluate the medical care provided in light of generally accepted standards, neither condemning performance that falls within the generally accepted practice standards nor endorsing nor condoning performance that falls below these standards; 5) will evaluate the medical care provided in light of the generally accepted standards that prevailed at that time of the occurrence; 6) will provide evidence or testimony that is complete, objective and scientifically based, and helpful to a just resolution of the proceeding; 7) will make a clear distinction between a departure from accepted practice standards and an untoward outcome; 8) will make every effort to determine whether there is a causal relationship between the alleged substandard practice and medical outcome; 9) will submit testimony to peer review, if requested by a professional organization to which the expert belongs; and 10) will not accept compensation that is contingent upon the outcome of the litigation. (Expert Witness Affirmation, Bulletin of the America College of Surgeons, Volume 89, No. 9 pages 33-34 (September, 2004)).
This issue has the potential of becoming the next “big thing” in medical malpractice actions. It may serve to scare-off potential plaintiffs’ experts from testifying at trial in fear of any actions to be taken by the American College of Surgeons.
In preparing the defense of a medical malpractice matter, the cross-examination of a plaintiff’s expert witness is one of the key areas where a case may be won or loss. Medical malpractice defense attorneys know that a successful outcome rests, in part, on undermining the credibility of the plaintiff’s testifying expert. Weaknesses in training, knowledge, skill or experience of the expert must be exposed to the jury, and the expert’s compensation for his testimony must be questioned critically so as to make the jury aware of a possible financial incentive for the decision to provide testimony.
In preparing for complex medical malpractice actions, defense attorneys begin their pre-trial investigation of plaintiff’s expert upon the issuance of a notice from plaintiff’s counsel and the best attacks of a plaintiff’s medical expert result when the opposing expert is compelled to concede your view of the underlying medicine. Pursuant to New York’s Civil Practice Law and Rules, New York does not require the expert’s deposition or his answering interrogatories prior to the trial. CPLR 3101(D)(1)(ii). In New York, attorneys only become aware of the identity of an opposing party’s expert at the time that their request for this information is answered, usually 60 to 120 days prior to the actual trial date. Therefore, the time frame is limited in order to adequately prepare for trial and cross-examination of a plaintiff’s expert in complex medical malpractice actions.
Defense attorneys will typically conduct exhaustive pre-trial investigations of the plaintiff’s expert in order to discredit their testimony at the time of trial. One of the most effective tools in doing this is to obtain the past testimony given by an expert. Typically, when a jury is confronted with contradictory testimony on a crucial matter, i.e., a plaintiff’s expert is shown to have adopted multiple points of view depending upon which side has paid him or her, there is a far greater likelihood of convincing a jury that this expert’s testimony is unreliable.
Additionally, defense attorneys attempt to acquire information of any past civil or criminal actions for which the expert was involved, as the witness’s reputation for truthfulness or untruthfulness is relevant to his credibility and any decision the jury resolves. Sometimes, this investigation may uncover an expert’s own related medical malpractice case.
In pre-trial preparation, defense counsel usually obtain copies of all contributions to medical literature made by the plaintiff’s expert. Computerized collections of peer-reviewed medical journals are available through the national library of medicine and may provide contradiction to the expected testimony.
Learning Point:
In the preparation of a complex medical malpractice matter, there can never be too much preparation. The lynchpin of a plaintiff’s case centers around expert testimony. Proving or disproving plaintiff’s theory of liability rests upon the credibility of plaintiff’s expert testifying at trial. The American College of Surgeons has begun a process of “self policing” their own Fellows by asking all members to sign an Affirmation prior to testifying in Court. By refusing to sign this Affirmation, experts, particularly plaintiff’s experts, place the credibility of their theory, and in turn, the theory and credibility of their entire case, at issue. •
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