Expertise in the subject matter forming the basis of any legal case is the sine qua non of an ethical expert witness. Such expertise is established on the basis of: (1) knowledge of the field; and (2) relevant clinical experience. In medicine, board preparation and current certification are the best indicators of knowledge of a specialty. Relevant experience is established by a period of active clinical practice beyond training, as well as practice during the time frame of the incident in question. An ethical expert witness should be actively practicing within his/her field in order to be aware of the current standard of care. Holding an active and unrestricted license to practice medicine constitutes a bare minimum qualification for expert testimony.^a

As an expert witness, the anesthesiologist has an ethical responsibility to be truthful, thorough, and impartial when evaluating a case for adherence to the standard of care. An expert witness’ primary responsibility must always be to discernment of the truth². Truthfulness is a fairly self evident concept; but in expert testimony based on case analysis, truthfulness carries several other ethical obligations. One obligation is that the analysis must be thorough, including all sources of possible information, even if the information initially provided is insufficient or might be misleading in light of further relevant details. Before forming any opinion, the physician must familiarize him or herself with all aspects of the case. Every relevant medical record must be accessed, as well as imaging or other ancillary studies if potentially germane to the medical issues. The witness has an obligation to review these materials even if they are difficult to obtain and are not volunteered by the attorney requesting expert consultation. This is important – an unscrupulous or incompetent attorney may provide selective information favoring the side for which he or she is an advocate. Failure to review all potentially relevant materials can render any expert susceptible to unwitting partiality, just as selective exclusion of mitigating data, facts, or circumstances may render an expert opinion unethical for partiality.

“… the ultimate test for accuracy and impartiality is a willingness to prepare testimony that could be presented unchanged for use by either the plaintiff or defendant.”¹

This is a valid and useful concept, though it could prove difficult to apply. In some instances, two blinded experts could examine the same set of facts and circumstances and ethically render opinions that are opposite in their conclusions, thus rendering either opinion useful to one party and damning for the other.

(2) “The physician’s testimony should reflect an evaluation of performance in light of generally accepted standards, reflected in relevant literature, neither condemning performance that clearly falls within generally accepted practice standards nor endorsing or condoning performance that clearly falls outside accepted medical practice.”¹

The expert witness must review time-appropriate literature to substantiate the existing standard, or to identify alternative acceptable approaches to care. Testimony should reflect knowledge of, and comparison with, applicable and generally accepted standards of care. Though not explicit in the ASA guidelines, the expert must be aware of and apply the standard of care that existed at the time of the incident giving rise to the claim, and should also take into consideration regional and even institution-specific and resource based variations in practice.

The legal principle of the medical “standard of care” is usually defined by case law or statute for each jurisdiction and entails some version of “that degree of care which would be rendered by a reasonably competent physician practicing under the same or similar circumstances.”³ In their zeal for advocacy, attorneys do not always clearly define this concept for their experts. Even the pivotal concept of “standard of care” is not well understood by many who agree to serve as expert witnesses, though most believe that they both understand it and can accurately describe the specific standard applicable in a given case. Legal scholars believe that medical expert testimony regarding what constitutes the standard of care is more apt to reflect what experts think that they and their immediate colleagues would do rather than what most physicians actually do.⁴ Research suggests medical expert witnesses share with all of us the tendency to have selectively optimistic recall of how well they themselves typically handle clinical situations.⁵ This means that well intended experts will tend to overestimate the applicable standard of care. As a fundamental principle, however, it is important to understand that the legal standard requires only that the physician acted reasonably under the circumstances.

An ethical witness must be careful in differentiating between a widely utilized standard of care, and ideal care that might be provided by the most astute clinician practicing under optimum circumstances. Application of an “ideal” standard (sometimes called “counsel of perfection”) may be a particular hazard for clinicians whose only practice experience has been in a tertiary care facility, such as a medical school faculty, or newly graduated residents.