Expert witness testimony: A trial judge's perspective

Educator of the Court: The Role of the Expert Witness in Cases Involving Autism Spectrum Disorder

The role of the expert witness in legal contexts is to educate fact finders of the court who may have no background in the expert's area. This role can be especially difficult for those who assist in cases involving individuals with Autism Spectrum Disorder (ASD). As expert assistance on ASD is crucial to ensuring just outcomes for individuals diagnosed with ASD, knowledge on how expert witnesses perceive and approach their roles, and what factors may influence these perceptions, is essential. This qualitative research utilizes semi-structured interviews with a sample of expert witnesses in cases involving ASD, analyzed using a grounded-theory constant comparative analytic approach. Data reveal that experts appear to view their roles in court as reconstructionists, educators, myth-dispellers, and most of all, communicators, actively using their testimony to fill these roles in cases. These results also allow for the development of a model that illustrates two areas that coalesce to affect how experts view their roles in court: (1) personal experiences of experts in cases in which they have been involved; and (2) influences outside experts' personal experiences, such as their general opinions or observations regarding ASD and its relationship to the criminal justice system.

Poor agreement among expert witnesses in bile duct injury malpractice litigation: an expert panel survey

OBJECTIVE

To determine the inter-rater agreement of expert witness testimonies in bile duct injury malpractice litigation.

BACKGROUND DATA

Malpractice litigation is an increasing concern in modern surgical practice. As most of the lawyers are not educated in medicine, expert witnesses are asked to testify about negligence of care in most jurisdictions. Although expert witnesses greatly determine the outcome of a claim, the reliability of expert testimony may be arbitrary.

METHODS

Surgical expert witnesses independently assessed whether negligence of care occurred by reviewing the complete medical history of closed litigation cases. All cases concerned iatrogenic bile duct injury, which occurred during laparoscopic cholecystectomy. The level of agreement was measured and case characteristics associated with negligence were determined.

RESULTS

Thirteen independent experts reviewed 10 closed litigation cases. In 1 of the 10 cases, full agreement was observed. In 7 of the 10 cases, the highest percentage of agreeing experts was 53% or less. Chance-corrected levels of agreement were in the slight to fair range (Kendall W coefficient of concordance = 0.16-0.25). Disease-related mortality was associated with judgments on negligence (P = 0.02). Judgments on negligence of care were not associated with delay in diagnosis or the severity of injury. Experts with more years of clinical experience agreed more about negligence. Experts working in an academic setting agreed less than experts working in a teaching hospital. Finally, 8 of the 13 experts plead for the assignment of more than 1 expert witness to review and comment in a surgical litigation case.

CONCLUSIONS

The reliability of expert witness testimonies in bile duct injury litigation is frail. Defendants, plaintiffs, experts, and lawyers should be aware of the drawbacks of expert witness testimonies. Raising consensus concerning the standards of surgical care may be required to improve agreement in judgments on negligence.

Lies, damned lies, and medical experts: the abrogation of responsibility by specialty organizations and a call for action

The festering problem of medical expert witnesses proffering false testimony in court remains. A review of the many proposed reforms to resolve this chronic and outrageous practice has indicated little progress despite a resolution by the American Medical Association enunciating that medical expert witness testimony is effectively the practice of medicine. A questionnaire was sent to 36 specialty organizations to determine whether they had established guidelines, position statements, policies, or bylaws that govern the disciplinary management of their members who testify falsely. Responses were obtained from all 36 specialty organizations and showed that over 80% had no definitive disciplinary policies to deal with this egregious practice. This finding is all the more surprising given repeated judicial and other exhortations to professional organizations to "police themselves." To address the abrogation of responsibility by specialty organizations, new stringent disciplinary steps are proposed to exorcise the despicable practice of false expert witness testimony from the practice of medicine.

The pediatric neurologist as expert witness with particular reference to perinatal asphyxia

The frequency of litigation related to alleged medical malpractice is increasing in Canada. For the neurologist, involvement in such litigation most often takes place in the context of acting as an expert witness and, for the pediatric neurologist, the most common clinical situation for which expertise is requested is that of possible perinatal asphyxia. The medical expert's primary role is to provide necessary guidance and assistance to the court, which may permit the rendering of decisions that are scientifically valid. This article will review the attributes of the medical expert witness. Aspects of perinatal asphyxia cases under litigation that commonly require the assistance of pediatric neurology expertise such as etiology, timing, extent of disability and life expectancy will also be reviewed in detail. The aim is to provide for the neurologist a clearer understanding of the responsibilities inherent in this increasing professional role.

Parasomnias: sleepwalking and the law

A recent, well-publicized case in which murder during sleepwalking was offered as a defense, underscores the fact that sleep medicine specialists are asked to render opinions or judgements regarding culpability in legal cases regarding violence claimed to have arisen from sleepwalking episodes. This review addresses this difficult issue from scientific, clinical and legal aspects, with emphasis upon the need for further research, calling for close collaboration between the legal and medical (both clinical and basic science) professions.