SUMMARY: Medical experts whose opinions depend on who is hiring them can be identified and should be avoided. However, the process of expert selection and preparation mitigates against impartiality. Expert witness bias is universal and should be confronted in both Direct and Cross-examination.
Hired guns fail to command the Court's respect, because they are perceived as being willing, for financial gain, to say whatever is necessary to achieve the advocate's goals. However, in medical malpractice litigation Defence hired guns are common and are better tolerated than Plaintiff because professional solidarity and loyalty are considered a more acceptable bias than money.
Not only are Plaintiff medical malpractice hired guns more denigrated, but they are much less numerous - and are virtually unknown in Canada, for instance.
Review of transcripts of expert opinion and testimony from previous Actions will frequently reveal inconsistencies if the expert is willing to say what counsel wants to hear.
The most obvious clue to Plaintiff- or Defence-orientation is the historical balance of cases for which they have provided expert opinion.
The assumptions the expert witness make where clinical or medical research information are unavailable often provides clues. Sometimes the bias as blatant as, ``Although the examination details are missing from clinical record, I am sure he examined the patient thoroughly...``
Hired guns are characterised by high credentials (usually), high frequency of providing expert opinion and high witness fees. Potential jurors had an interesting take on the combination of credentials and fees. Among experts with high fees, those with more modest credentials were perceived as being more credible as expert witnesses than those with the highest credentials. The explicit assumption was that those from most prestigious institutions appeared frequently as experts for whomever required services whereas a less prestigious witness had been selected because he had expertise that was crucial to the case. 1
Practical PointerHired guns are characterised by:
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However, the process of expert selection and preparation mitigates against impartiality.
Impartial expert opinion is harder to achieve in practice than in theory. 2 [Full Text] That expert witness should not be an advocate is unrealistic because he is arguing a position in which he believes, or purports to believe.
The expert is selected by a party to the litigation because, among other criteria, his views support the employer's position. He is then asked to address the issues of strength and thereby provide a slanted viewpoint that maximises the strengths and minimises the weaknesses of that party's position.
In theory, when he moves from expert opinion to court testimony, he is required to doff the hat of de facto advocate and don the hat of Friend of the Court. In this novel role, he is now expected by the Court to agree unhesitatingly with aspects of the case that are consistent with his special knowledge and professional beliefs and views, but that might harm his employer's Litigation Strategy.
However, the process of dialogue with counsel and resource physicians, submission and revision of written expert opinion, and trial preparation inevitably results in an emotional investment by the expert in the outcome of the litigation. The problem will be compounded if he perceives, rightly or wrongly, a current or future financial investment in the success of his side's position.
Just as what the Courts require as Disclosure for Informed Consent is both out of step with standard medical practice and clinically unrealistic, so the transition from advocate's witness to Friend of the Court can be approximate at best.
That an expert witness should be free from bias is equally unrealistic. 2 [Full Text]All expert witnesses are subject to a variety of biases.
Empirical evidence 3 [Full Text] shows that agreement between experts on Standard of Care varies from poor to good, frequently little better than chance. Much of that disagreement results from assumptions and biases, including prejudice and the expert's liking or dislike of the Plaintiff. 4
In medical malpractice litigation, medical expert opinion is largely based on implicit criteria. 5 [Full Text], 6 [Full Text] The standard claim that a witness has made no assumptions but formed an opinion based only on documentary evidence is a counsel of perfection and reality falls far short of this ideal. Though largely unconscious, many implicit assumptions about reality are universal and fundamental to all human interaction and communication.
Practical PointerExpert witness bias is universal and largely unconscious |
Expert witness bias is universal and should be confronted in both Direct and Cross-examination.
Neither deny nor attempt to compensate for bias, but have the expert witness address it directly. 7 [Full Text]
The psychiatrist authors offer a couple of examples from suicide cases. In a malpractice case, the expert might acknowledge his belief that every individual is an autonomous agent but that, based on the documentary evidence in this particular case, substandard care by the treating psychiatrist was the Proximate Cause of death.
In an insurance challenge, he might disclose that he did not hold the view that everyone who commits suicide is mentally ill but that, in this particular case, his opinion was that the evidence was overwhelming that the deceased met jurisdictional criteria for Unsound Mind.
Practical PointerBias should be confronted explicitly by one's own expert witnesses and in the other party's experts |
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