Selecting Medical Expert Witnesses
(a) Standard of Care or Causation
Frequently the peer physician best qualified to speak to standard of care is not from a specialty most knowledgeable about causation. The expert on causation in an action for failure to diagnose and treat a life-threatening infection will likely be a specialist in infectious diseases, and this is rarely the specialty of the defendant physician. Similarly, an oncologist expert opinion will be required for causation issues in delayed diagnosis of cancer, whereas the defendant is likely to be from another medical or surgical specialty.
Expert opinions on both aspects may be needed, and the causation expert opinions may be more crucial to success than those on standard of care. Whereas a general practitioner or emergentologist may have made a poor assessment of chest pain, it may be that the conflicting testimonies of cardiological experts about the impact of timely intervention will determine success or failure in the case.
(b) Underqualified or Overqualified
In some jurisdictions, medical defence strategy regularly includes attempts to disallow expert testimony on standard of care on grounds that the expert is not a true peer of the defendant physician. Thus, the defence may argue that an academic physician cannot set standards for a nonacademic, urban community standards differ from rural, a subspecialist should not address the expected standard of care of a specialist with subspecialty interest.
(c) Academic or Community Physician
In general, academics with busy clinical practices are more ready to provide expert opinion and testimony than nonacademics. They are, after all, generally in the business of setting community standards in a medical school. Defence counsel will often provide academic expert opinions for nonacademic defendant physicians.
For the most part, full professors and heads of department accept responsibility for recommending colleagues with the appropriate expertise and willingness to provide expert opinion. If not personally suitable or available for the particular action, they usually see such delegation within the academic department as a responsibility of their position.
Frequently assistant, associate, and clinical professors' clinical practices are as busy as the defendant physician's, and some are located in rural, even relatively remote, communities.
Nevertheless, at times it may be prudent or necessary to select a nonacademic physician.
