An expert witness can be retained by counsel as a consultant or be used to testify in court. These witnesses perform two important functions. The first is to use their tools, experience, and education to evaluate the evidence of a case, then form an educated opinion of that evidence as it relates to a court case. The other function of expert witnesses is to communicate that opinion to those present in the courtroom; primarily the judge and/or jury as well as attorneys.
Physicians play an important role in this system, as noted by the American College of Surgeons in their April 2011 Bulletin. The College issued a statement saying, in part, that physicians have an obligation to testify in court as expert witnesses when appropriate. Surgeons are just one type of physician who may utilize their expertise in this way.
The Role of a Surgical Expert Witness
Surgical expert witnesses can provide testimony surrounding any aspect of nearly any surgical procedure or medical concern that could have led to surgery. They usually provide expert opinions on surgical issues that involve the following areas:
- Appendix
- Bile ducts
- Colon
- Esophagus
- Gallbladder
- Liver
- Pancreas
- Small bowel
- Stomach
These witnesses can identify and discuss the triage, diagnosis, treatment, and follow-up that took place for your particular case, and in situations similar to that of your client. They’ll be able to explain the decision-making process that determines when surgery is the best option, and in what circumstances other therapies should be used.
Surgical expert witnesses explain the protocols, procedures, and complications in easy-to-understand terms. As a lawyer, you may need to know whether medical equipment was properly labeled or used. You may also look to an expert to understand whether patient consent was obtained properly, or whether the patient received all pertinent disclosures prior to having a procedure.
What You Can Expect During Trial
Since expert witnesses are such as important part of court proceedings, it’s important to understand what you can expect while your witness is on the stand.
The following guidelines outline the behavior of a surgeon acting as an expert witness:
- A true expert offers unbiased, independent testimony. Surgical expert witnesses will remain impartial and not advocate for either side.
- The surgical expert witness will review all medical information and then testify honestly and balanced. Any inferences and opinions will be based only on the facts of your case.
- A surgical expert witness can differentiate between negligence and unfortunate complications.
- Your surgical expert will identify if his or her personal opinion greatly varies from generally accepted protocols.
- Your surgical expert witness will represent whether particular actions were within the standards of care at the time the incident took place. He or she will be familiar with current and prior standards as they relate to the circumstances of your case.
- A surgical expert witness can testify to whether particular concepts and practices were the most appropriate at the time the incident took place.
- Your surgical expert witness can and will differentiate whether his or her testimony is based on clinical data, personal experience, or generally accepted opinions.
While on the stand your surgical expert witness acts as the unbiased liaison between your evidence and the judge or jury. They dissect and simplify technical often confusing information.
Finding the Right Surgeon to be Your Witness
Not every surgeon makes a good expert witness. The ideal surgical expert witness will have certain attributes above the rest. A list of guidelines below will help you in making that decision.
- The best expert witnesses can explain things to a variety of audiences. Not every surgeon is comfortable or willing to discuss complicated medical procedures outside of the operating room.
- Ideally, your surgical expert has, or had, hospital privileges where the incident in your case occurred. This helps you make a more accurate comparison of the treatment that took place there. However, this may be a drawback as your expert may be disqualified because of a pre-existing relationship with your client.
- The best surgical experts act as impartial educators, giving differing viewpoints as needed. Their testimony will not favor any party in the case, rather, it will be a truthful explanation of the circumstances surrounding the incident regardless of the surgeon’s personal opinions.
- Ideally, your surgical expert demonstrates relevant continuing education specific to the circumstances of the case. All surgeons are required to complete continuing education but not necessarily in the specific area.
- The specialty of your expert should be appropriate to the subject matter of the case.
- Ideally, your surgical expert witness held a valid and unrestricted state license at the time of the incident in your case. This ensures that he or she is knowledgeable about the standards and procedures of that timeframe.
- Ideally, your surgical expert witness holds a commanding yet pleasant demeanor. This is important on the stand when your expert is subject to cross-examination. Your witness should come across as knowledgeable, but also friendly.
Conclusion
Having an expert surgical witness on retainer is beneficial to your case. They can be involved in the pre-trial evaluation to help develop your case, or they can be directly involved in the trial.
Either way, a surgical expert adds a level of understanding and insight you wouldn’t otherwise gain. They can share valuable experiences with you, a judge, or a jury.
Contact the office to learn more about how the surgeons at Los Angeles Colon and Rectal Surgical Associates can work for your case.
