Careful expert witness selection, preparation key to successful medical malpractice case, P.1

In recent posts, we looked briefly at what exactly an affidavit of merit is and the requirement a physician must meet in order to sign off on an affidavit. As we noted, physicians must meet the same requirements as an expert witness, which we briefly summarized last time.

Even though state law prescribes certain requirements for expert witnesses, courts in Michigan do have the right to bar a physician from serving as an expert witness on other grounds. A physician who is deemed not to be credible, for instance, might be barred from serving as an expert witness. 

The credibility of expert witnesses is an important issue that is highlighted by a recent ProPublica interview with a surgeon who openly admitted to lying under oath years ago in a medical malpractice case. He was asked to provide testimony in court regarding his knowledge of the quality of a fellow surgeon’s work, and testified—contrary to conscience—that he was unaware of any substandard work. Now, years later, he is admitting his perjury and warning patients about the issue of expert witness credibility.

It is somewhat ironic, of course, that the physician in the story is now retired so that he is no longer subject to professional discipline, that he is probably untouchable from a legal standpoint because of the statute of limitations on perjury, and that he may very well now be benefiting monetarily from his work in patient advocacy. Nevertheless, it certainly is true that the credibility of expert testimony is a potentially important issue in medical malpractice litigation.

In our next post, we’ll continue looking at this issue, and why it is so important to work with an experienced attorney to assess every qualification of an expert witness rather than merely his or her educational and professional competence.  

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