Ethical Challenges for the Medical Expert Witness

Abstract

Dr. Lopez is a well-respected, board-certified academic behavioral neurologist who primarily treats patients with cognitive dysfunction and has a special interest in traumatic brain injury (TBI). On rare occasions she has served as an expert witness but, as a rule, does not testify against physicians in her community in malpractice cases. Now a plaintiff's attorney, Mr. Sewell, has contacted her to engage her services in a case brought against a crosscountry trucking company. One year ago the plaintiff, Ms. Dewey, was pulling out of a parking lot when her car was hit by a truck from the defendant's fleet. She alleged a variety of injuries sustained as a result of the accident, including chronic headaches and residual cognitive dysfunction from a mild traumatic brain injury (TBI). The mild TBI category, which is the most prevalent type of TBI, includes concussions and other brain trauma that have initial symptoms such as loss of consciousness and/or "a state of being dazed, confused or disoriented" [1]. Mr. Sewell told Dr. Lopez that she would be given an opportunity to review the documents and would then be asked whether she could testify that it was more likely than not that the mild traumatic brain injury sustained during the motor vehicle accident was the proximate cause of Ms. Dewey's cognitive dysfunction. Intrigued by the facts and interested in serving as an expert witness for a case not involving malpractice, Dr. Lopez agreed to review the documents once Mr. Sewell agreed to the terms of her fee schedule and she received her retainer fee for document review.