Expert Witness Risks

A New Emerging Modern Peril

By Dr. David Edward Marcinko; MBA, CMP™


insurance-bookIn the past, a physician expert witness for the plaintiff was merely an opposing opinion by a learned and/or like colleague. Today, it is becoming a risk management minefield as the AMA and other groups are urging state medical licensing boards to police expert witnesses, which might require expert testimony be considered the practice of medicine.


This seems especially true with the Rolling Meadows Illinois based American Association of Neurological Surgeons (AANS).

Feuding Members

Currently, a member of the AANS can file a complaint against any fellow member for testimony as either an expert witness for the plaintiff, or defense witness for the doctor. A committee of four then reviews the court records and requires the accuser to face the accused in a formal review. Sanctions range form three months to a year, to complete expulsion from the association. In the past twenty years, the program has reviewed 27 cases all involving plaintiff testimony. One led to expulsion and ten to suspension.


Since 2001, the courts are beginning to take the AANS process seriously. After years of operations without strong legal backing, the program was upheld by the 7th Circuit Court of Appeals, in Chicago by a neurosurgeon whom the group suspended in 1997. So always remember, if you testify falsely, or too far from the norm, you may be at risk.


And so your thoughts, opinions and comments are appreciated?

Speaker: If you need a moderator or a speaker for an upcoming event, Dr. David Edward Marcinko; MBA – Editor and Publisher-in-Chief – is available for speaking engagements. Contact him at:

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4 Responses

  1. Expert Witnesses on Trial

    Lawmakers, physician organizations, and courts are taking steps to combat unethical testimony by so-called hired guns. In recent years, several states have enacted tighter restrictions on expert witness testimony in medical negligence cases. At the same time, more medical associations and state medical boards have created standards for proper expert witness testimony and acted against experts who violate those rules.

    Florida is the latest state to pass restrictions on the use of expert witnesses in medical liability cases. Under a law signed July 1 by the governor, out-of-state physicians offering expert testimony must apply for a certificate to testify. The state medical board can discipline them if they provide deceptive testimony. At least 30 states have similar expert witness laws. Some statutes, such as Arizona’s, require witnesses to practice in the same specialty as the physician defendant. Others, like Maryland’s, mandate that doctors spend a certain amount of time actively practicing medicine.

    Source: Alicia Gallegos, AMNews [8/1/11]


  2. How a doctor reviews cases for both plaintiff and defense attorneys

    Early in my career, a local defense attorney working with my hospital would occasionally ask me to review a case in which another physician client of her firm was the defendant.

    Then one day I was called by a plaintiff attorney who had previously deposed me as a defense expert and asked if I would consider looking at a plaintiff’s case. I was honored, accepted the challenge, and discovered the experience little different than working for a defense attorney …



  3. Tougher Requirements for Expert Witnesses Benefit Doctors in Malpractice Suits

    Did you know that one of the most successful ways to control and diminish medical malpractice suits involves limitation of experts who can testify? This phenomenon, which occurs by legislative action, has remained largely unreported, but it is a method that is gaining in popularity in some state legislatures.

    Now however, there is a risk that state supreme courts may overturn these efforts, but continued efforts in this direction hopefully will prevail and lead to fewer medical malpractice suits.

    Let’s start a conversation on this topic.



  4. The “Experts”

    Here is an essay on the the problem of expert witnesses in medical malpractice trials.



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