The case of the Doctor Who was Not Board-Certified.
Jane Doe, M.D.

Lacking Board-Certification, a physician’s medical education became a go-to touchstone for attorneys seeking to reassure themselves she had the chops for expert testimony.

School Got in the Way.  In her case, she did not have a fantastic medical degree to fill in the void. She was not alone. Many practicing physicians in the US receive excellent training at “lower tier” schools, or schools outside the US.[1]

This doctor’s skill and experience became her greatest strength.

Paths to Medical Excellence

There is more than one entry to a specialization in medicine. Doctors may start off in research, bypassing multiple residencies, Fellowships or Boards.  They may need to rush into a salaried job to pay off debt, foregoing Boards to start earning.

Raising in the ranks of such a job will teach them how to practice medicine, communicate, and lead others.  Achievements do not always come with a Diplomate.

Smart and Good

Jane Doe’s lack of Board-Certification did not mean she was not smart, accomplished, excellent at explaining her field of medicine to a jury. Her insight in an IME, or polished report were not contingent on Board-Certification.

Is she qualified to serve as a Subject Matter Expert Witness?

Subject matter experts must show they are knowledgeable about their subject, obviously.

Dr. Doe’s long-standing clinical practice, her publications, clinical appointments of importance, and faculty appointments reflected subject matter expertise.

Due Diligence

In theory, the attorney’s due diligence would include verifying a doctor’s licensing with the State, any assumed Board-Certification, as well as close scrutiny of her CV.

Attorney due diligence is unreliable and often overlooked. If she were not forthcoming about her credentials, and relies on attorneys to “do their job,” she starts a blame game which is poison for building a forensic practice.

Proactive Disclosure = Good Faith.

I advise my clients that upfront disclosure of any blemishes on their CV, such as the absence of Board-Certification, is ethically obligatory.

Being retained takes place before “Expert Disclosure”– a legal process informing all parties that a particular expert witness will serve in that capacity.

If the attorney wants to retain Dr. Doe, then her integrity must be already established. If they don’t retain her abut want her to review records or give a “from the hip” type opinion, I would advise this doctor to save her time and move on to the next case. The attorney may want free insight but that is neither appropriate or good business.

Education is a Marketing Tool (yup, my motto).

Talk it out. I advised this doctor to open up a conversation with an attorney. This can happen before or after disclosure about her credentials. Before or after being retained.

It is courteous, smart and a fantastic opportunity. The attorney will learn why she is qualified, and ask questions that encourage education about her area of expertise.

In this case, she agreed with me and we proceeded.

Vulnerability to Opposing Counsel Challenges

Worst case scenario: A Motion in Limine is filed prior to trial, to disqualify or limit the scope of an Expert’s testimony.

If an attorney is faced with a Motion in Limine because the Expert is not Board-Certified, and that’s news to them, Dr. Doe will face one very angry attorney. Expect to fight over fees. Expect she won’t get work from that attorney again.

In fact, aside from a Motion in Limine, opposing counsel can file a motion to disqualify an expert on the grounds they are not…qualified. Such challenges may fail, and the case moves to trial with the Expert Witness.

How Should She Handle Disclosure?

When an attorney first calls you, they want to know if you can address the issue at hand. Credentials are usually presented in the form of sending a CV. It may be too early to talk about the finer points of credentials.

I advised this doctor to send her CV and set up a time for the “open a conversation” call. Let the attorney see your qualifications, I advised, before discussing if something is “missing.”

Her agreement determined whether I took her on as a client.

Details about the doctor in this case study were changed to protect confidentiality.

[1] The price tag of medical school in the US, and difficult bars to entrance,  mean there are brilliant scientists studying in countries with a lower cost of living. Their excellent 3.6 GPA or an average MCAT score, might keep them out of a US Medical School. These doctors may be skilled, exceptional practitioners. Attorney bias, however, is real.

The physician in this case study had to face this bias in every first call. It got easier to put their fears to rest and eventually, she was no longer defending her lack of forensic education by putting it in context: a historical footnote in a career of achievements.

Racism

Medicine and technology are fields where we find people of color, perhaps not born in the US or communicating with an accent. Juries are full of similar individuals and who may be more attentive to an Expert who looks and speaks like them.

Practicing lawyers, however, are less diverse than juries.

In forensic medical-legal work many factors make for a good choice by attornyes in choosing an Expert witness.

Serving justice is what counts.