Should You Offer Your Physician as an Expert or Fact Witness?

We are often asked at deposition whether the defendant physician is being offered as “an expert or a fact witness.” The distinction is important and can affect discovery, litigation, and even the outcome of the case. How do you know which one is the right choice?

Let’s take a quick look at the two roles to help you decide:

In the role of fact witness, treating physicians testify to the facts and circumstances surrounding their own treatment of the patient. Generally, they do not offer a medical opinion beyond their own treatment and personal observations of the care provided. They usually refrain from rendering opinions on causation.

On the other hand, as an expert witness, your physician can offer additional scientific opinions on liability and causation, cite to research supporting his/her position, and review and comment on additional materials that can help your case.

Use caution here. Offering your physician in litigation “as an expert” is not without risk. For example, education, training (did he fail the boards?), other lawsuits and extraneous matters may become relevant. In addition, like all experts, the evidentiary standards regarding the admissibility of testimony will apply and the scope of cross examination may become much broader.

So, how do we know when to designate the defendant doctor as an expert? Consider whether the physician is competent, qualified, and credible, with a sound understanding of the facts; beyond those observed firsthand. In these cases, the defendant physician is usually published, aware of current research and standards, and excelled academically in the field. Nevertheless, the testimony of the treating physician should always be supplemented with the testimony of a retained expert.

Bottom Line: Each case is unique, and we must weigh the benefits and risks of designating a defendant physician as an expert.

If you have any questions about whether your physician shouldbe an expert witness and how it may play out in your case, contact us.  We would be glad to help.

Neal Brown

Neal Brown

Neal Brown is a Fellow of the American College of Trial Lawyers and a Martindale-Hubbell AV-rated trial attorney. He is a founding partner of Waranch & Brown, where he has devoted his career to defending hospitals and health care providers in medical malpractice and related cases.
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