Accept the challenge of giving testimony for medical litigation as an expert witness

When scientific, technical, or specialized knowledge is required, it is often presented by recognized experts in their respective fields. The Daubert Standard Federal Rule of Evidence 702 (1972) states that decisions to admit or to exclude an expert witness’s testimony lies within the court’s discretion, described in further detail in the January 2002 issue of Chiropractic Products.

In medical litigation (negligence), six elements must be proven: 1) an act or actionable omission by the defendant, 2) duty of due care, 3) breach of duty (lack of due care), 4) actual causes, 5) proximal causes, and 6) damages. The first three define negligence, and the last three, liability. Doctors who practice must exercise a degree of duty to meet the standard of care existing in the same or similar communities by members of their profession. In the pre-suit investigation, experts are needed to review records—from the standpoint of both the plaintiff and defendant—in order to establish negligence.

Weigh the Evidence
Under Daubert, scientific evidence must meet the trier of facts or facts that have been tested and proven. At times, judges will not admit the evidence or allow the jury to weigh the credibility of the expert and the presented evidence. Then the Daubert standard motion may be applied as it pertains to challenging the expert witness. One such challenge deals with the reasoning and methodology of the reliability and scientific weight. In addition, the question of its relevance to the facts of the case may be an issue. Most courts will allow experts the opportunity to defend the admissibility of their testimony before making a ruling.

How is it determined whether evidence is scientific in medical litigation cases? Although experts may have good credentials, they may lack the scientific basis for their opinions. Chiropractors can qualify by having competence with training and knowledge in their profession; supporting or documenting the method they reach conclusions, which must be reliable under Daubert; giving testimony that supports the facts of the case; and proving that the evidence/testimony is scientific, technical, or special knowledge.

In trial cases, attorneys generally will begin by asking questions as to your qualifications and education. The purpose of this is to ensure sufficient education and training required for expert testimony. If your answers are not sufficient, you may be challenged under Daubert or particular state tests.

Courts will determine whether the reliability of the evidence under Daubert 702 meets these criteria:

1. Can the evidence/opinion be tested?
2. Is the evidence subject to peer review and publication?
3. Is the error rate plus or minus in the technique used to reach a conclusion by the expert?
4. Is the theory used to reach a conclusion generally accepted in the scientific community?
5. Is the evidence reliable, relevant, and scientific for the case?

Your Day in Court
As a chiropractor, you can testify based on your qualifications and knowledge, but the evidence must be scientifically based and defined by clinical criteria and/or objective tests to reach your diagnosis. In expert testimony, the use of theories, hypotheses, or observations in reaching conclusions without clinical or objective findings may make you suspect to the methodology used to form your opinion.

Most laws in medical negligence require the plaintiff to prove a preponderance of evidence with a reasonable degree of medical probability that the action or omission by the defendant was the cause of the plaintiff’s injuries. The expert has to prove to a reasonable medical probability with scientific, reliable evidence that the defendant was at fault. In addition, as an expert, you must rule out other possibilities that may have caused the plaintiff’s injuries.

Medical litigation is becoming more complex and the role of the expert will increase. Most states, by statute (state law) allow doctors of chiropractic to testify as expert witnesses based on their education, knowledge and specific training. However, most do not have specific training in the medical-legal arena, which requires being able to withstand challenges of their qualifications and testifying on scientifically based evidence. Also, they must reach a conclusion and form an opinion on objective testing of their theories. This type of training is not taught in chiropractic colleges. With increased litigation on state levels and the Health Insurance Portability and Accountability Act (HIPAA), it is essential to have training before offering to testify as an expert witness.

Kenneth S. Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer. He practices chiropractic in Orlando, Fla, and is a member of the Orange County Bar Association. Ross is a faculty member of Texas Chiropractic College, teaches tort law, and conducts a national expert witness certification course. He can be reached at 407-682-6041, or via his website: www.medicallawjd.com.