|Expert Witness dilemma: Confidentiality
Clarifying the duty of an expert witness
By Richard N. Peterson, JD, and Kathleen I. Delaney
What can—or should—be expected of an expert witness? This seemingly-straightforward question actually evokes a number of ethical dilemmas.
>The AAOS is taking steps to provide guidance to orthopaedic surgeons who deliver expert witness testimony. The AAOS Code of Medical Ethics and Professionalism offers orthopaedic surgeons who provide expert witness testimony a clear and consistent set of ethical guidelines. The proposed Standards of Professionalism on Orthopaedic Expert Witness Testimony, on which the fellowship will vote in Spring 2005, attempt to even further delineate these rules. In addition, the AAOS Expert Witness Affirmation Statement offers the orthopaedic expert witness a means to voluntarily affirm his or her professional duty when providing expert witness testimony.
However, despite these efforts to clarify expert witness expectations, physicians who act as expert witnesses in civil or administrative matters may face ethical issues that remain unclear.
A question of fairness
Recent exchanges among physicians and attorneys on the Center and Coalition for Ethical Medical Testimony Web site (http://www.ccemt.org ) highlight one doctor’s dilemma. This expert witness physician reviewed two neurological matters in which he concluded that the treating doctors did not violate standards of care and so informed the plaintiffs’ attorney. As a result, the plaintiffs’ attorney discharged the expert witness.
At this point, the expert witness physician raised the question to CCEMT, asking whether he could notify the defendant-physicians of his findings and offer his expert witness services on their behalf. The expert witness was not seeking additional remuneration; he was seeking fairness.
Both physicians and attorneys contributed to the extensive online discussion this situation generated. Critical questions involving confidentiality were at the core of the discussion:
In general, the responding physicians sided with truth over fairness and justice. One doctor opined that medical literature and experience support truth, while fairness and justice rest in the realm of attorneys. A second physician offered his own standards for reviewing cases. He said that he does not charge an attorney for the review. However, he insists that if he concludes that the standard of care was not violated, the attorney must agree not to litigate. This approach, while popular, was criticized because it was unenforceable.
A matter of confidentiality
The responding attorneys, on the other hand, tended to emphasize the issue of implied confidentiality. A clear retention letter outlining an expert’s duty to maintain confidentiality is preferable to an implied agreement, but it is not a requirement. One attorney pointed out that an expert witness is employed as an agent of the attorney and plaintiff and, as such, has a professional obligation to maintain confidentiality, regardless of the expert’s opinion.
Reviewing medical records and discussing the plaintiff’s medical condition exposes an expert witness to matters that fall under the privileged umbrella of “attorney work product.” According to this opinion, an expert witness may not agree with the plaintiff or counsel, but must keep information confidential even at the perceived expense of fairness and justice.
The attorney-client relationship precludes an attorney from suing and defending the same client, even in suits involving different matters. Expert witnesses, however, according to some, should not be held to this same level of loyalty.
Expert witnesses do not advocate on behalf of clients. Rather, an expert witness educates a jury so that they can reach a verdict. In theory, an expert witness may provide testimony that supports an attorney’s client in one case and goes against the same attorney’s client in a different case. However, an expert witness may not breach that client’s absolute or implied confidentiality when providing testimony in ensuing matters. Contacting opposing counsel with conclusions that benefit their client is a breach of confidentiality. Maintaining independence regardless of the outcome is the duty of an expert witness.
Issues of the confidentiality of an expert witness’s opinion provided to counsel are controversial. Orthopaedic surgeons who review medical records at the request of an attorney or who provide expert witness testimony in civil or administrative matters are encouraged to clarify confidentiality expectations with the retaining attorney prior to offering their expertise. A well-crafted agreement between the hiring attorney and the physician-expert witness avoids unexpected outcomes, maintains professionalism and continues a practice of adherence to high ethical guidelines.
Richard N. Peterson, JD, is general counsel for the AAOS. He can be reached at email@example.com
Kathleen I. Delaney is coordinator of the AAOS Expert Witness Program. She can be reached at firstname.lastname@example.org
Affirmation Statement update
AAOS fellows and members continue to submit signed AAOS Expert Witness Affirmation Statements. To date, more than 6,100 signed Expert Witness Affirmation Statements have been logged into the AAOS database. Fellows and members may access this on-line database to verify their own or another orthopaedic surgeon’s signed Affirmation Statement through the Members Only section at http://www6.aaos.org/expwit/expertwitness.htm. The AAOS Expert Witness Program honors written requests for copies of signed Expert Witness Affirmation Statements from fellows, members and counsel.
In addition, AAOS fellows and members continue to submit legal documents to the Expert Witness Clearinghouse Project for use by their colleagues in future civil or administrative matters. Additional information about the Expert Witness Clearinghouse Project is available through http://www.aaos.org/expert.
What is CCEMT?
The AAOS Expert Witness Program participates in and exchanges information with the Center and Coalition for Ethical Medical Testimony (CCEMT). An independent organization of physicians and attorneys, CCEMT advocates for ethical and honest testimony by medical expert witnesses and provides a forum for the exchange of information between health care and legal professionals. CCEMT espouses education and empowerment of physicians, attorneys and the public to combat the existing medical-legal crisis. More information about CCEMT and the benefits of membership in CCEMT are available at: www.ccemt.org or through the Members Only section of http://www.aaos.org/expert.