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When Does a Treating Physician Become an Expert Witness?

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We typically think of an expert witness as an isolated contractor, brought in at the onset of a legal dispute to build an opinion and testify about a matter to which they have no connection. Sometimes, however, a more direct “witness” may also have technical or scientific expertise relevant to the case. In a medical malpractice case, personal injury suit, disability benefits dispute, or other proceeding centering around the health of a key party, often the person with the most direct knowledge of the party is their treating physician. Can a treating physician be an expert witness? Are they testifying as a normal or “fact” witness when they discuss their own examination and diagnosis? Read on for a discussion of treating physicians as expert witnesses, and call a qualified medical expert with any additional questions or for assistance with a legal proceeding.

Treating Physicians Are Typically Fact Witnesses

Just because a physician is testifying about a matter of scientific expertise does not automatically render them an “expert” witness. On the contrary, treating physicians are considered “fact” witnesses by default. They are generally brought in to testify about the facts and circumstances surrounding their own examination of the plaintiff, meaning they are testifying to matters about which they have personal knowledge. Unlike expert witnesses, they are not (by default) offering a broader opinion about, for example, causation. They’ll be relying on their own notes and reports, focusing only on the results of tests they personally ordered or conducted. So long as they confine their testimony to their own personal observations and examinations made during the course of their treatment, then they are simply fact witnesses.

The Distinction Matters

Expert witnesses must be disclosed well in advance of trial. Their opinions must be disclosed, typically in the form of an expert report. Their opinions must be well-founded and are subject to high standards for inclusion. Expert opinions are subject to Daubert or Frye motions challenging whether their opinions can be admitted at all based on scientific reliability, the data on which their opinion is based, and the reliability of their methods used.

Fact witnesses, on the other hand, can testify about what they observed and it’s up to the jury to decide how credible they are. Opposing counsel can try to undermine their credibility, but getting their testimony tossed entirely is much more difficult.

When is a Treating Physician an Expert?

A treating physician may be treated as an expert witness when their testimony goes beyond the scope of their own personal examinations, tests, and observations. When they start opining about causation, for example, or start incorporating evidence from other parts of the case (e.g., treatment of other physicians) to render a broader opinion, then their testimony veers into expert territory.

A treating physician may be a hybrid fact-expert witness. What matters is not the label used when the witness is first roped into the case, but rather the nature of their testimony. If they are asked to review the work of other doctors and render an opinion on their standard of care or regarding their conclusions, they are offering an expert opinion. When they read the results of a blood test they conducted, they are a fact witness; when they offer an opinion about what in the plaintiff’s life may have caused a particular illness, they are acting as an expert.

Different courts have different precise standards about when a fact witness crosses into expert territory, but should the physician’s testimony seek to cross that line, they will likely need to submit an expert report and submit to a proper expert witness evaluation.

If you need a licensed, knowledgeable, and effective expert witness in a personal injury, medical malpractice, or product liability case, contact the offices of Neurosurgery Medlegal Services, LLC, at 866-659-8051.

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