The ACS Board of Regents approved a revised Statement on the Physician Acting as an Expert Witness at its October 2024 meeting. An initial statement on the topic was released in 2000 and subsequently was revised in 2011.
In today’s medico-legal climate, expert witnesses, serving either the defendant or plaintiff, play an essential role. As a result, the Board of Governors Physician Competency and Health Workgroup charged an experienced and committed group of Fellows to revisit and update the ACS statement to reflect legal changes and evolving medical and social expectations.
The group reviewed the literature and statements from other organizations and sought the input of legal advisors. Stanley W. Ashley, MD, FACS, the Frank Sawyer Professor of Surgery at Harvard Medical School in Boston, Massachusetts, and William Doscher, MD, FACS, associate professor of surgery at Zucker School of Medicine at Hofstra/Northwell in Hempstead, New York, co-led the group.
“Through a process of informed and thoughtful consensus, we learned from each other and made significant revisions and additions to the existing document,” Dr. Ashley said. “The revised statement should provide needed guidelines and a framework for Fellows choosing to play the essential role of expert witness.”
Qualifications for Experts
While the core elements of the 2024 revised statement are familiar, there was a substantial focus on strengthening the language used for the recommended qualifications.
In the question of licensure, the revised statement notes that the physician expert witness “must” have a “a current, valid, and unrestricted state license to practice medicine at the time of the alleged occurrence,” whereas earlier versions said “should.” In addition, the statement explained that a witness must be a diplomate of a specialty board relevant to the subject matter of the case, and the 2024 revision is updated to align with ACS membership qualifications.
Remaining consistent are requirements for having accredited hospital privileges at the time of the procedure, familiarity with standards of care, and physician documentation and frequency of time serving as a witness.
Behavioral Guidelines
The behavioral guidelines retain the charge for physician experts to remain impartial, fair, and honest, exercising their expertise and experience to provide evenhanded and ethical testimony in the case.
The revised statement, however, provides additional information on specifically not acting as a coach to witnesses, defendants, or plaintiffs in cases for which they have been called—they “should only provide facts and information and be a neutral educator that helps juries understand technical aspects of cases.”
Reflecting the importance of the physician expert acting in accordance with ACS values, one of the notable additions is the inclusion of information on the ACS Central Judiciary Committee and a link to the ACS Expert Witness Affirmation. The College accepts complaints about expert witness testimony that may be in violation of its guidelines and qualifications, which could constitute a violation of one or more of its Bylaws and lead to disciplinary action.
Fellows are encouraged to review the revised statement in its entirety. In addition, an article will be published in the Journal of the American College of Surgeons that will provide additional insight into the revision, as well as tips and pearls for those acting as expert witnesses.
The revised Statement on the Physician Acting as an Expert Witness and other ACS statements are available at Statements.
