Advocacy testimony continues to be one of the most frequent complaints brought before the AANS Professional Development Conduct Committee and is the most frequent basis for sanctions of members by the AANS Board of Directors. The core of the complaint is usually a statement under oath that some action or inaction was “below the standard of care.”
Neurosurgeons obviously differ about the best strategies for diagnosis or treatment, and these differences are the substance of most of our journals. Despite preferences, however, there is general recognition of a range of acceptable management. This range of the standard of care changes over time and must be considered when stating that some past action or omission was outside the standard of care. The margins of acceptable care are not always clear cut and experts may reasonably disagree. In such cases, they should recognize a close call and testify.
A flagrant misstatement of the neurosurgical standard of care is readily recognized by most neurosurgeons but not by lay jurors who must try to decide which of two conflicting statements to believe. Misstatements in discovery depositions may cause defensible cases to be compromised or meritorious cases to be dropped.
The AANS Code of Ethics, Expert Witness Guidelines and Position Statement on Testimony in Professional Liability Cases make clear the role of the neurosurgical expert witness as an educator of the jurors in the art and science of our specialty, and not as a hired teammate of the attorney for one side or the other.
AANS Code of Ethics, Adopted 1981, Section V, Item B:
The neurological surgeon, as an expert witness, shall diligently and thoroughly prepare himself or herself with relative facts so that he or she can, to the best of his or her ability, provide the court with accurate and documentable options on the matters at hand.
Expert Witness Guidelines, 16A-1 through 4, Adopted by the AANS Board of Directors in 1983:
A. The following are guidelines for testimony by neurosurgeons acting as expert witnesses:
In our society, it is customary that testimony be given in all adversary proceedings brought before the court system. The AANS has adopted a position advising all neurosurgeons to testify impartially and prudently for both the defendant and plaintiff in matters brought before the courts.
Witnesses are designated as expert witnesses if they have knowledge of any specific topic thought to be beyond the comprehension of the average layman. Expert witnesses are expected to be impartial and should not adopt a position of advocacy, except as spokesman for the field of special knowledge that they represent. The neurosurgical expert witness must testify as to the practice behavior of a prudent neurosurgeon giving differing viewpoints, if there are such.
Prior to offering any testimony, the expert witness should:
1) Become familiar with all the pertinent data of the particular matter at hand.
2) Review prior and current concepts related to standard neurosurgical practice on the matter at hand.
3) Not concern himself with the legal issues of the matter in question.
4) Identify as such, personal opinions not generally accepted by other neurosurgeons.
In this manner, the neurosurgical expert witness should be reasonable and commensurate with the time and effort given to preparing for his deposition or court appearance.
Position Statement on Testimony in Professional Liability Cases, Adopted in 1987:
The American legal system requires expert testimony for both plaintiff and defendant. The committee believes it is of central importance that such testimony be truly expert and as impartial as possible. The committee proposes the following guidelines for expert witness:
1) “Expert” testimony should reflect not only the opinioons of the individual but also honestly describe where such opinions vary from common practice. The expert should not present his or her views as the only correct ones if they differ from what might be done by other neurosurgeons.
2) An expert should be a surgeon who is still engaged in the active practice of surgery, or can demonstrate enough familiarity with present practices to warrant designation as an expert.
3) The neurosurgeon should champion what he/she believes to be the truth, not the cause of one party or the other.
4) The neurosurgeon should not accept a contingency fee as an expert witness.
W. Ben Blackett, MD, JD, is a neurosurgeon in private practice in Tacoma, Washington. He is a 31-year member of the AANS, Chairman of the Professional Conduct Committee, and recipient of the 1999 AANS Distinguished Service Award