How to Choose an Expert Witness for a Medical Malpractice Case Involving a Physician Assistant (PA) or Nurse Practitioner (NP)
Article by W. Anthony Gerard, MD, FACEP, FAAFP
Introduction to APP Liability
Physicians are often held liable in medical malpractice cases for the actions of Advanced Practice Providers (APPs), such as nurse practitioners and physician assistants. Under vicarious liability, or "respondeat superior," physicians are responsible for their employees' actions, particularly when providing supervision. This is especially true in cases with adverse outcomes, where there are often allegations of incompetence or inadequate training. Physicians are frequently held responsible for hiring, training, and supervising APPs.
Expert Witness Selection and Physician Involvement
Based on my experience working with malpractice attorneys, there is often a preference to involve a physician in these cases, even when PAs or NPs are available to testify regarding the standard of care for their peers. In most states, advanced practice providers practice under the supervision or collaboration of a physician; only a few states grant full practice authority to NPs. While many jurisdictions now require expert testimony from someone in the same profession, physicians may still be called upon to define or clarify the standard of care for PAs and NPs, particularly regarding supervisory roles or complex clinical questions. Attorneys typically seek a PA or NP to testify against another PA or NP to ensure that the expert fully understands the detailed scope of practice, educational background, and specific clinical duties. I can assist attorneys in identifying and retaining qualified advanced practice providers for expert witness testimony when needed.
Role of the Physician Expert Witness
As a physician, my primary role is often to address supervision issues and the clinical standard of care. In some jurisdictions, the expert witness must be in the precise practice area as the defendant to establish the standard of care.
Qualifications and Experience
I am a residency-trained, board-certified physician with extensive experience collaborating with physician assistants (PAs) and nurse practitioners (NPs) in both clinical and academic settings. As an assistant clinical professor at Penn State College of Medicine, I regularly instruct PA students and possess a deep understanding of the education, training, and supervision of advanced practice providers. My background as a collaborating and supervising physician enables me to provide knowledgeable and objective testimony in medical malpractice cases where a PA or NP is the defendant. If I am not the optimal expert for a particular case, I can refer other qualified professionals.
The Importance of Appropriate Expert Testimony
Expert witnesses are instrumental in determining the outcome of both plaintiff and defense cases, particularly when the defendant is a physician assistant or nurse practitioner. It is critical to select an expert who is knowledgeable about the education, scope of practice, supervision models, and standards of care relevant to PAs and NPs. My experience collaborating with advanced practice providers in diverse clinical environments allows me to offer informed and impartial expertise in cases involving PA or NP defendants. If a different expert is more appropriate, I can provide guidance or recommend suitable candidates.
Rural Practice Considerations
I have a particular interest in rural medicine, especially in emergency departments, and have published extensively on this topic. In rural settings, many APPs provide a broad spectrum of care, sometimes serving as the community's primary providers.
Impact of Effective Expert Testimony
While the medical care provided in a case is paramount, the quality of expert testimony can significantly influence the outcome. As an experienced collaborating and supervising physician, I can clarify complex medical issues for legal teams and juries. My background includes extensive deposition and trial experience, which has proven valuable in helping jurors understand intricate medical issues. Objectivity and clear communication are fundamental to effective expert testimony, and I strive to uphold the highest standards in every case.
Qualities of an Effective Expert Witness
Not all expert witnesses are created equal, and some excellent physicians do not make good expert witnesses. Experts must be able to review the facts of a case logically and without hindsight bias. Many physicians have strong credentials and extensive clinical experience, but may lack deposition or courtroom skills. Others may communicate well but lack the required professional background. My experience includes success in depositions and courtrooms, and I recommend checking for disciplinary actions, ensuring familiarity with the standard of care, and confirming the ability to communicate complex medical issues clearly to a jury when selecting an expert.
Key Qualities of an Outstanding Expert Witness
What qualities distinguish an outstanding expert witness from an adequate one? There are several key considerations: (1) Residency training and board certification, (2) Collaboration with APPs, (3) Substantial experience and ongoing clinical practice, (4) Demonstrated experience as an expert witness, and (5) Congeniality, credibility, and strong communication skills.
Legal Requirements for Expert Witnesses
State laws regarding expert witness testimony vary, but often require that the expert closely match the defendant's practice area and training. For cases involving advanced practice providers (APPs), such as PAs and NPs, a background in the relevant specialty is essential. The most effective expert witnesses understand the credentialing, scope of practice, and supervision requirements for APPs, as well as current state regulations. Experience in reviewing cases involving varying degrees of supervision—especially in rural and underserved settings—is particularly valuable.
When selecting an expert, attorneys should prioritize individuals with direct experience in similar practice environments, active clinical involvement, and the ability to communicate complex medical issues clearly. Board certification and familiarity with both the standard of care and legal processes are important. Remote depositions are now common, making it easier to consult experts from other states if necessary.
Key responsibilities of the expert witness include defining the standard of care, identifying breaches, and determining causation and damages. This requires a clear, objective, and evidence-based approach. My background includes extensive experience on both plaintiff and defense cases, a thorough understanding of medical malpractice law, and a commitment to professionalism and clear communication. I am also able to refer attorneys to other qualified experts if needed.
Guidelines from Professional Societies on Expert Witnesses
Physician assistant (PA) organizations, particularly the American Academy of Physician Associates (AAPA), have established ethical guidelines for PAs serving as expert witnesses. These guidelines emphasize that testimony must be thorough, fair, impartial, and truthful, and specifically prohibit contingency fees based on case outcomes. Key elements of the AAPA expert witness policy include an ethical obligation to uphold the integrity of the profession by avoiding actions that could discredit or dishonor it. Experts are expected to maintain impartiality by objectively reviewing medical facts and avoiding any personal, financial, or professional bias. PAs should receive fair compensation for their time but must not accept contingency fees. The American Academy of PAs in Legal Medicine (AAPALM) offers educational resources and support for PAs serving as expert witnesses, working in partnership with the AAPA. For more details, see: https://www.apalm.net/wp-content/uploads/2024/03/Physician-Assistant-Expert-Witness-AAPA-Guidelines.pdf
Nurse practitioners (NPs) often have greater independence than PAs. For further discussion of the NP role as an expert witness, see: https://journals.lww.com/tnpj/citation/2013/10000/stepping_up_to_be_an_expert_witness.3.aspx
Role of Physicians in APP Malpractice Cases
Physicians should act as expert witnesses in medical malpractice cases, including those involving advanced practice providers (APPs) like PAs or NPs, to ensure an objective, standard-of-care-based evaluation. While APPs may testify regarding their own standards, physicians often provide necessary oversight context, requiring them to understand the specific scope of practice and clinical standards applicable to the APP at the time of the incident.
When physicians serve as expert witnesses in cases involving advanced practice providers (APPs), several important considerations arise. The expert must be familiar with the standard of care for the specific professional involved—if the defendant is an APP, the expert should ideally be an experienced physician in the same area of medicine, who has directly supervised them. The physician expert should have a current, valid license and be active in the relevant specialty. Experts must provide impartial, evidence-based testimony, clearly distinguishing between bad outcomes and true negligence, regardless of which side they are testifying for. Physicians also have an ethical duty to help the court determine whether a breach of care occurred, which is crucial to liability.
As a supervising physician in family medicine, emergency medicine, and urgent care, I have a broad scope of practice and supervise APPs in these areas. Guidelines emphasize evidence-based standards and the established standard of care. Personal opinions, especially when the outcome of a case is known, should be avoided unless the opinion complies with these standards. Expert witnesses should not link their compensation to the outcome of the case. Honest, evidence-based testimony regarding standards of care is emphasized. I have expertise in health policy and staffing of APPs that could help find the perfect expert. When an attorney has difficulty finding an APP expert or needs a physician as well, my experience is helpful.
Expert witnesses also help educate the jury, the judge, and the attorneys, so they must be able to "translate" medical terminology into lay terms. The expert witness should possess current experience and ongoing knowledge in the area where he or she is asked to testify. So physicians who serve as expert witnesses should limit their retention as experts to cases in which they have true expertise. Expert witnesses should strive for objectivity to the extent that they would be comfortable with their testimony regardless of whether it is used by the plaintiff or the defendant. When various acceptable treatment options exist or a diagnosis is difficult, experts need to be candid about this. Expert witnesses must be objective about whether a breach in the standard of care caused a poor outcome. Poor outcomes can occur independent of deviations from the standard of care, and may not cause the patient's outcome.
Professional Fees and Business Practices
My fees are structured to be fair and reflect a commitment to ethical and professional business practices. Attorneys should always seek expert witnesses who adhere to the highest standards in marketing, advertising, contracts, and payment arrangements. Compensation for expert witness testimony should be reasonable and commensurate with the time and expertise required; excessive or contingency-based fees are inappropriate and should be avoided. I ensure that all business aspects of my expert witness services are transparent, ethical, and align with industry best practices.
Expertise Beyond Clinical Skills
It is important to recognize that exceptional clinical skills do not always translate into effectiveness as an expert witness—particularly in cases involving advanced practice providers (APPs). My extensive experience and specialized knowledge in working with APPs equip me to provide clear, objective, and credible testimony in legal matters.
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