Misrepresentation of Facts by the Expert Witness

Abstract

THE EXPERT WITNESS is fully protected under most state statutes and federal law from incorrect opinions expressed under oath. Statements of fact that are intentional lies are subject to punishment under the laws for perjury. The medical expert has a vast amount of leeway as to what may be said under oath, as long as it is expressed as his or her opinion. It is sometimes difficult to differentiate between a lie and what a misinformed physician believes is the truth. A case will often turn on the opinion of an expert who is believable because of his or her demeanor and not necessarily what is scientifically true or actually the standard of practice. The truth can best be shown to a jury by actual statements from peer-reviewed medical papers in journals or a reliable text. But what text is completely reliable? For instance, there are texts edited by experts in a particular field, but lesser “authorities” or even doctors in another field of practice write the actual chapters. One prime example is when a radiation oncologist, professor of medicine, and professor of surgery, but no professor of hematology–oncology, write a chapter on breast cancer in a major oncology text and the chapter covers the medical oncology treatment of breast cancer.(1) The expert witness may provide incorrect opinions through failure to obtain the correct facts or information, failure to study the literature, failure to find out if there are reliable minority opinions, or by receiving misinformation. There may be improper exuberance to win the case for the side on which he or she is testifying, rather than being impartial. Sometimes, although not often, it is a matter of financial gain by helping to win the case so as to receive further referrals or be hired again.