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Compendium January 2013 (Vol 35, No 1)

The Editor's Desk: On Being Called to Be an Expert Witness

by Dana Gray Allen, DVM, MSc, DACVIM (Small Animal Internal Medicine)

    Dana Allen

    As veterinarians, we do not have to be told how important pets are to us and the families who care for them. According to the 2011-2012 APPA National Pet Owners Survey, there are approximately 78.2 million owned dogs and approximately 86.4 million owned cats in the United States. (Accurate figures are difficult to find for Canadian pet-owning households.) Many—if not most—of these pets are regarded as an integral part of the family. Animals help people through times of stress, and they provide what we perceive as unconditional love, loyalty, companionship, protection, and a sense of security. The loss of these gifts from injury or death resulting from apparent negligence on the part of a veterinarian may result in the grieved party seeking legal retribution. Grief, sadness, and anger are common human responses to the injury or death of companion pets/animals. Grieving pet owners may direct their anger toward themselves or toward a person perceived to be at fault for their pet’s injury or death, and the latter may well be the veterinarian into whose care the pet was entrusted.

    The veterinary profession remains largely self-regulating across the civilized world. This means that, as veterinarians, we are tasked with defining the rules that govern our profession. We are accountable to our respective state/provincial veterinary associations for providing the public with safe, competent, and ethical care. Society’s trust in our profession to regulate its members is a privilege. To maintain that trust, we must be diligent in monitoring our colleagues when it comes to the care of our patients. Accordingly, if you are ever asked to serve as an expert witness in the hearing of a case against a fellow veterinarian, there are many aspects you must consider.

    The standard of care for veterinarians is measured against the care of other veterinarians under similar circumstances. A veterinarian's skill and care are judged against those of the average practitioner, not a specialist. On the other hand, a veterinarian who is board certified as a specialist is held to a higher standard. By definition, an expert witness is a person whose knowledge in a particular subject area is, by virtue of his or her education, training, skill, or experience, believed to be superior to that of the average person. The primary role of an expert witness is to assist the court in the determination of the facts presented and to offer an opinion about the standard of care provided by the defendant. The testimony/opinion provided by an expert witness carries a lot of weight in the decision(s) reached by the court.*

    When does a complaint come up for review? Given that pursuing a lawsuit is expensive and time consuming, the cost of going to court will likely exceed any monetary sums that might be awarded. Many pet owners prefer to settle the matter outside the courtroom, hopefully through mutually accepted mitigation. An acceptable recourse for the accused veterinarian may reside in the undertaking of appropriate courses directed to addressing whatever apparent shortcomings were made evident through the investigation of the facts in the case.

    If you have never before participated in the hearing process, it can be intimidating. There is much at risk. The individual being accused of a breach of standard of care is in peril of financial penalty, damage to his or her reputation, suspension or restriction of his or her ability to practice medicine, and significant emotional stress. Recently, some courts have also awarded additional monetary damages due to the loss of “companionship” or the “emotional distress” the pet owner may feel over the loss or injury of a pet.

    Before agreeing to serve as an expert witness, ask yourself if you consider yourself well versed or an expert in the area in question. Do you know the defendant and, if so, under what circumstances? Do you feel you can contribute objectively and positively to the case? Remember, you must be objective. If you have personal ties to either the defendant or the plaintiff, it would be in your best interest to recuse yourself.

    Next, ask the person who is prepared to retain you about the general issues of the case. Do you feel you can offer an opinion on the area(s) being investigated?

    If you feel you are prepared to take on this task, you will need to outline your fees on an hourly and daily basis, including travel, if required, and associated costs. I can assure you that preparing yourself, drafting an opinion, and perhaps appearing in court are time consuming and expensive. Do not sell yourself short! Get an agreement signed.

    The following are the basic steps in preparing a case:

    • You will be asked to establish yourself as an expert witness. Bring your curriculum vitae up-to-date with your education, experience, additional training, certification(s) as appropriate, publications, etc.
    • In your letter of opinion, list the documents (e.g., medical records, radiographs) to which you have been given access. If some of the documents are difficult to interpret, simply say so without being prejudicial. Note—you may not have access to all the material in the case, so it is important to establish exactly what your opinion is based on.
    • List every complaint brought forward in chronologic order and draft it as it appears in the letter of complaint and as it appears in the medical record. It is your responsibility to establish and to clarify the facts in the case in a manner that the court can understand. Assess the material you have been given and formulate an opinion as to whether each complaint appears justified. Does your assessment correspond with the care provided by the defendant? Does the defendant meet the standard of care that a veterinarian with similar training would provide? Substantiate your opinion with an excerpt(s) from refereed journals.
    • Ask for any clarification in the material you have been given before writing your preliminary report. For example, you may need interpretation of unfamiliar acronyms or an explanation of the basis on which certain statements were made.
    • Your preliminary report to the lawyer should not include your conclusions, as they may change and contradict the findings in your final report. If your final interpretation does change, you should rationalize the basis for the difference. In your final report, state your opinion along with your analysis and reasoning, with the support of refereed sources. Include that list of references to support your opinion. Avoid “references” that cannot be substantiated by medical fact (e.g., popular opinion, hearsay). You may be asked to draft and redraft your reports for the lawyers to make certain all pertinent issues are addressed.

    Many cases that go to court involve more than one issue, such as falling below the accepted standards of practice in multiple areas (e.g., poor record keeping, misinterpretation of data, poor communication). If you find the defendant has met the standards of practice in one area but may not have in another, then it is advantageous to offer suggestions as to how the accused may address the shortcomings you identify and thereby demonstrate that he or she is willing to undertake some remedial effort. Examples of remedial measures may include undertaking courses in drafting medical records or improving communication skills.

    If you are required to be present at a formal hearing, be prepared. Review the case, all the information forwarded to you, your letter of opinion, and the evidence used to support your opinion. The lawyer who has retained your services as a witness should prepare you for what to expect in court, the types of questions that may be asked of you, and how the proceedings will be conducted. When you are asked a question in court, answer only the question asked and do not provide additional information that may, in hindsight, be used against your client. Be professional, dress as a professional, and avoid confrontation.

    The experience of providing expert opinion can be rewarding. The message you send as an expert witness is clear: as a profession, veterinarians want to provide the best of medical care, and as a self-regulating body, we are prepared to safeguard the health of the public’s animal companions.

    Sources

    Adams CL, Bonnett BN, Meek AH. Predictors of owner response to companion animal death in 177 clients from 14 practices in Ontario. J Am Vet Med Assoc 2000;217:1303-1309.

    Adrian JA, Deliramich AN, Frueh BC. Complicated grief and posttraumatic stress disorder in humans’ response to the death of pets/animals. Bull Menninger Clin 2009;73(3):176-187.

    Andrew LB. Expert witness testimony: the ethics of being a medical expert witness. Emerg Med Clin North Am 2006;24(3):715-731.

    Copeland JD. How to be an effective expert witness. Vet Clin North Am Small Anim Pract 1993;23:1007-1017.

    Fellmer E. The veterinarian in the court. Tierarztl Prax 1986;14(1):1-7.

    Lesperance RJ. Guidelines for a veterinarian testifying in court as an expert witness. Can Vet J 1994;35:789-792.

    Perron J. The law of veterinary liability and the human animal bond. J Am Vet Med Assoc 1997;210:184-186.

    Rollin BE. An Introduction to Veterinary Medical Ethics: Theory and Cases. Ames, IA: Iowa State University Press; 1999.

    Stauffer I, Kehoe M. Being an expert witness. In: Tait J, Ausman B, eds. The First Bite: A Comprehensive Guide to Establishing and Growing Your Career in Veterinary Medicine. 2nd ed. Kitchener, ON: Pandora Press; 2008.

    Stern M. Psychological elements of attachment to pets and response to pet loss. J Am Vet Med Assoc 1996;209:1707-1711.

    Walsh F. Human-animal bonds I: the relational significance of companion animals. Fam Process 2009;48(4):462-480.

    Walsh F. Human-animal bonds II: the role of pets in family systems and family therapy. Fam Process 2009;48(4):481-499.


    *This editorial is not meant to be an all-encompassing review of the law as it pertains to veterinarians and the practice of veterinary medicine, as the procedure and interpretation of laws governing veterinarians’ activities vary between countries. For example, the community in which a veterinarian practices has been used as a measure of the standard of care for a given veterinarian in some US states. As an illustration, practitioners in a suburban area with limited diagnostic or therapeutic options and limited opportunities for referral have historically been granted leeway in the interpretation of the standard of care. However, with the advent of telecommunication and Internet access and the greater opportunity for referral, that custom is quickly coming to an end.

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