Testimony Overview

Legal testimony, whether given in court or at a deposition, is made under penalty of perjury. Medical testimony falls on a spectrum from purely factual testimony by direct care providers to purely expert opinion offered by a healthcare professional who never treated the patient. There is a large gray area in the middle of the spectrum where these types of testimony overlap. An ongoing debate persists in the legal world over whether a treating physician can be required to disclose expert opinions he may have regarding cause or prognosis. In general, opinions regarding the specific cause and mechanism of a complicated injury and projection of future damages constitute the type of expert opinions that you are not required to express in a deposition or in court. This perspective only applies, however, if you have not agreed to express these opinions and have not already done so in conversation with the patient or in the patient’s medical records. Be mindful that this is an area of debate in the law and if a judge orders you to answer a question that calls for your expert opinion, you should comply to the best of your ability.

As a medical provider, you will probably be qualified by the court as an expert because of your knowledge, skill, experience and training and you will therefore be allowed to give expert opinions. Most lawsuits involving a patient’s medical condition require expert opinion testimony beyond the mere facts of the treatment process. In an effort to save time and money, the patient’s attorney may try to get the treating physician to be the expert on causation and damages, as well as testifying about the care provided. For example, in a personal injury case such as a motor vehicle accident, you may be asked about the patient’s long-term prognosis, and whether you believe the accident caused the injury.

Attorneys often ask for your expert opinion by using the words “probably” or “more likely than not” or “within a reasonable degree of medical certainty.” Different states have slightly different evidentiary requirements for expert testimony to be allowed into the case, but the state standards are similar. You should understand that these words have a different meaning in the law than in ordinary conversation. Your expert opinion should be based on what you believe is more likely to be true than false, not what you think is merely possible. Conversely, you do not need a high confidence level to meet the “probably/more likely than not” standard; anything over 50% will do in most situations.

As demonstrated in the case examples, your role may shift during the course of litigation of any type. If you are involved in a medical malpractice case as a fact witness and not named as a defendant but the case closely involves your care, you should notify your liability insurance carrier as a precaution and request defense attorney guidance prior to testifying.