Pediatricians and pediatric subspecialists acting as experts in medical malpractice actions serve an important role when they provide scientifically sound and unbiased testimony.
Some practices by expert witnesses, however, can compromise the integrity of the testimony and adversely impact the outcome of cases, leading to increased liability risk. Such practices may include testimony based on weak, misinterpreted or nonexistent scientific evidence; testifying in cases clearly outside of one’s clinical training and/or experience; or entering into contracts with exorbitant fees contingent on case results.
Courts and juries rely on medical experts to make medical standards understandable. In medical liability cases, expert witnesses establish the standard of care applicable to the case at issue at the time of the alleged incident, opine on whether the care provided deviated from that standard and, if so, may be asked to testify as to whether the deviation could have been the proximate cause of the patient’s alleged injury.
Professional societies have an interest in preventing their fellows from providing substandard testimony while using their membership in the society to augment their prestige and credibility. Specialty societies have used a variety of approaches to accomplish this goal, one of which is voluntary affirmation statements. These statements are documents by which members affirm in writing their ethical obligations when providing expert testimony. Attorneys in medical liability cases can use these statements to bolster the credibility of experts or to impeach experts who fail to abide by them or are not eligible to use them because they are not members of their specialty society.
Many of the medical specialty societies that have implemented voluntary affirmation statements have found them to be effective in guiding their members to provide scientific, ethical and professional expert testimony and disarming those who do not. If an expert witness is not willing or not eligible to sign the voluntary affirmation form, it can be an effective tool for the opposing attorney to challenge the witness’s credibility.
The Academy views the use of voluntary affirmation statements as a way to help rein in the growing problem of improper medical expert testimony and improve the quality of expert testimony. The Academy urges its members to use the voluntary expert witness affirmation form when participating as expert witnesses in civil or criminal proceedings.
This voluntary affirmation statement is based on the AAP policy statement and technical report, Expert Witness Participation in Civil and Criminal Proceedings authored by the AAP Committee on Medical Liability and Risk Management.
Being an AAP Fellow provides a certain degree of stature in the field. To use this stature to bolster credibility, the pediatrician should be willing to adhere to basic guidelines of appropriate, ethical conduct in the provision of expert testimony in part via an affirmation statement.
The Academy urges its members to use the voluntary expert witness affirmation form.
Read the form carefully and ensure that it accurately reflects your practices when serving as an expert witness. Then sign the form and give it to the attorney who has secured your services for use at his or her discretion. The Academy will not record the names of members downloading the form or retain signed copies, as use of the form is optional.
To review an explanation of the unique role of the expert witness and tips on how to give effective testimony see this article