Guideline for Physicians Serving as Expert Witness
The American College of Correctional Physicians’
Guidelines for Physicians Serving as Expert Witnesses in Correctional Litigation
Physicians testifying as experts in correctional healthcare litigation should have guidelines that assist them in properly testifying as to the practice of correctional medicine. Correctional practitioners may be subject to litigation in both federal and state courts. While disease parameters do not change with incarceration, practice parameters may vary to accommodate security concerns and the necessities of a completely managed healthcare system. Attorneys will benefit by using physicians who have correctional experience. As experts in correctional health cases, they are familiar with the operational aspects of health care delivery in correctional settings. It is important that legal consultants in correctional litigation understand correctional medical practice and the adaptations necessary to correctional settings. Correctional practitioners often provide expert testimony so that the court and jury may hear informed opinions and justice be served.
When physicians are asked to serve as an expert, their background, experience, and expertise should be similar to, or exceed, that of the physician(s) about whose conduct they are opining. They either should be active or have been active in the practice of correctional medicine, or be extremely familiar with correctional medicine. The physician should be able to provide expertise on correctional health care issues such as access to care, standards of care, correctional guidelines and care of conditions in correctional settings, as well as safety and security concepts.
Before agreeing to serve as an expert, the physician may have a conversation with the attorney about the basic facts of the case and, if appropriate, review the available evidence (medical records, witness statements and testimony, physical evidence, standards, etc.) and reach their own conclusion about the merits of the allegations in the case. The physician should determine whether or not there is a deviation from applicable standards of care and whether or not that departure caused the patient’s loss.
Having agreed to serve, the physician may discover that the facts do not support the attorney’s view. The physician should so inform the attorney and may consider being a consultant, rather than a testifying expert. Despite the attorney’s beliefs, physicians should at all times provide and rely upon their own judgment, supporting only positions clearly warranted by the available facts.
Expert witnesses should adhere to the ethical principles of recognized medical organizations, such as the American Medical Association and American Osteopathic Association relating to being an expert witness.
They should avoid conflicts of interest, which may include: (1)
- Having recently, within the previous 1-3 years (2), worked at the involved institution or Department of Correction in question,
- Having examined or treated the patient in the past,
- Having worked for the correctional services vendor involved in the case, and
- Having surveyed or provided technical assistance to the facility or providers in question (3)
Characteristics that may be of value in determining whether a physician is a suitable expert witness in correctional cases include, but are not limited to:
- Participation in developing or reviewing correctional facility Policies & Procedures
- Supervision of correctional medical staff
- Affiliation with correctional organizations such as:
- National Commission on Correctional Health Care
- American College of Correctional Physicians (aka Society of Correctional Physicians)
- American Correctional Association
- American Jail Association
- Academic Consortium on Criminal Justice Health
- Academy of Correctional Health Professionals
- National Institute of Corrections
- National Sheriffs’ Association
- Having attended conferences devoted to correctional medicine
- Having given presentations or written articles on correctional medicine
Testifying as an expert witness includes providing qualified opinions on the applicable standards of care. If the opinions favor the plaintiff, they will likely be against medical or correctional staff; if the expert offers an opinion in support of the care given, the opinions will usually oppose allegations of the patient. Opinions should be careful, fair, respectful, and supported by evidence. Departures from the standard of care should be described without demeaning references to colleagues, facilities or their employers. Testimony for the defense should avoid belittling the patient, invoking criminal history, and perceived histrionic or disingenuous behavior. Both defendants and plaintiffs are entitled to respect. If the expert does not know something regarding the case, the issue or the applicable standard, they should respectfully acknowledge they don’t know. Physicians should not voice opinions outside their scope of expertise or unrelated to the case. Guessing or giving an unsubstantiated answer can be counterproductive and contrary to the role of the expert.
Physician expert witnesses provide an invaluable and necessary role in litigation involving the medical staffs of correctional institutions and must be conscientious, diligent, sincere and honest.
(1) These are extremely variable and would depend on the circumstances of the case. These are not totally inclusive or exclusive, but may be considered.
(2) This may depend on the capacity in which the physician worked with the facility.
(3) The National Commission on Correctional Health Care (NCCHC) enjoins surveyors to serve as expert witnesses involving NCCHC accredited facilities. Surveyors may be allowed to serve as expert witnesses for the defense of accredited facilities, but variances should be requested case by case.