As an expert or fact witness, you can be liable for your opinions when testifying in civil, criminal, and state board actions
With few exceptions, state statutes afford you the ability to testify and give opinions in all court proceedings. Your testimony can be in the form of an expert stating your opinion or as a fact witness for patients you directly treat. Today, more so than ever, your testimony is being challenged with respect to your education, knowledge, and training as a chiropractor. The challenge is usually done using the Daubert Standard under Federal Rule 702, however, in some states the Frey Test is used.
In the past, your testimony, with few exceptions, has not faced civil liability for your actions while offering testimony as an expert or fact witness. The trend is reversing and the potential for liability for giving your testimony is growing, both from a civil and criminal standpoint.
Bear False Witness
Criminal liability can be imposed on anyone who knowingly makes a false statement or uses information, including any written records and documents that contain false material. You can be found to be criminally liable, fined, or jailed if found guilty. Proof beyond a reasonable doubt is sufficient for conviction.
Civil liability: Under federal and state law, witnesses are usually protected from civil liability in giving testimony. However, these protections do have limits. One such limit is lying under oath. In most cases, civil liability from testimony comes in the form of defamation by the witness to the opposing party or attorney. To date, most states have considered the issue of liability against your testimony, and there is a growing opinion that witnesses should be held liable for their testimony in certain instances. Your privilege to testify and have immunity differ from state to state. One thing is for certain, the issue of witness immunity will undergo changes, which will make exceptions to your testimony and immunity.
Litigation privileges: These are statements or working documents related to a case from beginning through the trial. These are records usually not shared with opposing attorneys.
Absolute, qualified, and witness immunities: Absolute immunity protects a witness from liability even with willful misconduct or malice. Qualified immunity is different in that it does not protect you from misconduct or malice, but does protect you from an honest mistake in giving testimony. Witness immunity has to do with defamation, misrepresentation, and negligence of testimony as a witness in court proceedings.
Negligence: If you are negligent in giving your testimony, you may be sued by the very party whom you are testifying for. If this happens, the plaintiff must show that the witness was negligent, and the negligent conduct was the cause of the plaintiff’s injuries. The plaintiff must prove that they would have won the case if the witness was not negligent in giving testimony.
Misrepresentation: Witnesses in most cases are not immune from liability for knowingly misrepresenting their opinions in giving testimony, either as an expert or a fact witness.
Defamation: Usually witnesses are protected from defamation in giving testimony. Keep in mind that you are liable for your opinion outside the context of a proceeding or suit. This can include negligence, state board actions, and even perjury. To make defamatory statements outside the context of a suit or proceeding, you as a witness cannot claim immunity for the case you are involved with or immunity in a professional board action if you are sued for defamation. Most states require that the board that governs your license be notified if you are sued. This will begin an investigation by the board, in addition to a suit filed against you by the plaintiff for defamation. Most state boards consider this falling below a standard and failure to meet ethical standards in your professional conduct.
Most states and courts, with few exceptions, do not grant absolute immunity from civil liability to a witness as they have in the past. Courts have held that the oath witnesses take prior to testifying, cross examinations, and depositions is enough for witnesses to tell the truth. Granting absolute immunity would deprive the courts of remedies against testimonies and would invite misconduct by witnesses.
False evidence: Most states strongly support witness immunity in some form. However, a witness may still be subject to prosecution and board actions for giving false statements under oath, even if the witness is immune from civil liability by the courts.
Changing your opinion or honest mistakes: Witnesses are expected to be honest and tell the truth when testifying. Witnesses are not liable if they change their testimony or make honest mistakes. If they make an honest mistake, they are protected by a qualified immunity as long as there is no malicious intent on the part of the witness.
If you are testifying as a witness, make sure you know your particular state laws (statutes). You can reduce your exposure to liability for testimony by following some simple rules.
Always testify truthfully, because you expose yourself to civil liability and board action if you do not.
Do not testify or alter evidence. You may face civil tort liability for negligence, failure to keep proper records, and falling below a standard of care.
Do not discuss a case, except with the attorney whom you are testifying for.
Do your homework before you testify.
Avoid conflicts of interest.
Testify as to the facts or your opinion.
Maintain your malpractice insurance and any special rider if necessary.
Liability differs from state to state and jurisdiction. Remember liability can be civil, criminal, or state board actions. Limit your liability by telling the truth as a fact witness or an expert witness and calling each case as you see it. CP
Kenneth S. Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer and practices chiropractic in Orlando, Fla. He is a faculty member of Texas Chiropractic College, teaches tort law, and conducts a national expert witness certification course. He can be reached at 866-225-5055, or via website: www.medtechusa.net.
The information in this article is intended for informational purposes only and does not constitute any legal advice whatsoever. Consult an attorney in your state to determine your state laws governing such information.
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