Expert testimony: A perspective from the trenches

Abstract

The controversy over the role of the "expert" in medical litigation is in some ways the product of semantic confusion. Many physicians mistake the legal definition of an expert with that of ordinary usage, further fueling the resentment of doctors who testify against other doctors. Legally, however, an expert is simply one qualified to offer an opinion. In ruling on the admissibility of expert testimony, a court determines whether the proffered expert has the minimal qualifications necessary to have an opinion. An expert, then, does not have to have the right opinion; rather, he or she has the right to have an opinion. The bar is thus set quite low. In medical malpractice litigation, the threshold of admissibility is usually met by board certification in the same specialty as the defendant. Although expert testimony, as defined above, is necessary in most medical malpractice cases, that need is obviated when negligence is so obvious that the law presumes that a lay jury can discover it. Abuses of expert testimony are real. They are, however, in some part the consequence of some of the best doctors' refusal to assist the victims of malpractice, creating a vacuum that the less scrupulous fill.