The rules of evidence recognize that treating physicians may testify as fact witnesses and/or expert witnesses provided the parties make appropriate disclosures. As the doctor who examined a plaintiff before there was any litigation pending, treating physicians often have relevant information. While it may be necessary or useful to have the doctor testify as a fact witness, it does not necessarily follow that he/she would be the ideal expert witness. There are pros and cons to using the treating doctor as an expert witness.
Pros
The benefits of testimony by the doctor who examined and treated the plaintiff revolve around their unique position. The treating doctor examined the plaintiff because he/she was their patient for the purpose of diagnosis and treatment, not in anticipation of testifying in litigation. This means that treating physicians are typically viewed as providing their “expert” opinion based on what they personally examined and observed in real time. As a result, their testimony may be perceived as being more trustworthy and unbiased. Unlike treaters, expert witnesses can be viewed by jurors as having an interest in the case or as hired guns for lawyers. Expert witnesses do not necessarily examine the party claiming injury. They instead rely on medical records and other documentation to support their testimony, which may not seem as reliable as opinions based on a personal examination.
Cons
While a treating doctor may be a useful fact witness, expert witnesses serve a different purpose – to provide an opinion based on their special expertise. There are limits to the testimony of fact witnesses. They can testify as to their own personal observations and medical records they reviewed, but cannot give a medical opinion based on other external facts or examine records which they did not have at the time of diagnosis and treatment. Expert witnesses, however, can offer their opinion and evaluate other records and evidence, which is why they must have appropriate credentials that demonstrate their expertise. The problem is that a treating doctor may not have those credentials.
Beyond issues solely related to physical examination, litigation may involve complex questions of causation or damages to which the examining doctor may not be qualified to testify. In nearly every matter, it is more important to have an expert witness who is highly credentialed in the specific medical specialty related to the facts of the case. The treating physician may have little knowledge or experience in the relevant field of medicine making his/her testimony inaccurate or subject to discrediting.
Another concern that arises with treating physicians is their reluctance to serve as a witness. A treating doctor may be uncomfortable with testifying as an expert witness for many reasons including time constraints, distaste for litigation, concerns about his/her own level of expertise, being perceived as a “professional expert witness,” and possible ethical issues. A witness who would prefer not to testify is highly unlikely to be an effective witness.
The optimal approach for attorneys may be to use a treating doctor as a fact witness and supplement with an expert witness with the necessary qualifications. In addition, where a personal medical examination may help inform the opinion of the expert witness, such examination can easily be arranged if stipulated in advance with the testifying expert.
If you are considering or involved in any type of personal injury litigation, contact Elite Medical Experts to hand select nationally recognized experts for your case. We will secure a top-tier voice who is an expert in the exact injury and issues involved in your matter.
