A physician's partner or colleague has been sued for malpractice, and that physician has been subpoenaed by the plaintiff to give testimony about what happened. The subpoenaed physician believes that his partner's/colleagues's care did indeed deviate from recognized standards. While he must be honest, he is also reluctant to say things that could ruin his friend's career, and perhaps jeopardize his relationship. Fortunately, the situation may not be as bad as it seems.
A physician can be compelled to testify about what he knows and what he did. But he cannot be subpoenaed to offer an opinion on what his colleague should have known or should have done. Courts distinguish between factual testimony -- the knowledge of what he saw, what he did, and what he said -- and what is thought about what someone else did--so called, expert witness testimony.
The beliefs about what someone else may or should have done are for the domain of expert witness testimony. Experts get paid for their testimony and time, factual testifiers don't. Medical experts offer opinion, not personal knowledge. A physician has every right to refuse to opine in these areas. Expert testimony generally cannot be compelled by a percipient witness. Physicians, however, can choose to offer this service, and when they do, they usually get paid for it.
As for the factual knowledge, the physician has a legal obligation to testify about what he knows. The only compensation will be, in most instances, reimbursement of his travel costs and, if subpoenaed for a deposition rather than court, perhaps reimbursement for time lost from work.
However, the line between opinion testimony and factual testimony is not always clear. For example, a question of why your colleague performed a particular test or why he made a certain diagnosis could be considered an objective question, not a subjective one -- even though his answer may be that his decision was based on his opinion that the patient may have had a specific underlying illness or condition. This is because he relied on this opinion in his decision-making. What he relies on is a question of fact, not of opinion.
By contrast, if a physician is asked his opinion about what his partner did, he should not have to answer. But this doesn't guarantee that even his factual testimony could implicate a colleague. For example, if the testifying physician always orders an echocardiogram when he had a patient a year earlier that he suspected had heart disease but his colleague failed to order an echocardiogram when confronted with a patient with similar symptoms, his testimony could be inadvertently used against his colleague, even though the testifying physician's decision to order the echocardiogram was specific only for that particular patient, and no two patients are the same.
Since the line between opinion and fact can be blurred, physicians testifying as percipient witnesses are best advised to consult an attorney before testifying. Chances are that the attorney will want to accompany him to his testimony. The physician's malpractice carrier can probably provide the attorney. Also, the colleague's attorney can be consulted and this communication is usually considered privileged and non-discoverable. Or, the physician can contact his own healthcare attorney for advice.
While the physician may want to discuss his anticipated testimony with his colleague, these discussions will not be privileged and may compromise his credibility at trial because he may be required to disclose what was discussed. It's best to postpone these conversations until after he has consulted an attorney.
However, there is nothing to prevent the physician from offering his opinion, particularly if he believes that his opinion will be helpful to his colleague, or if he feels ethically obligated to a patient. But it is important to consider that if he does decide to testify against a colleague, this may well end the relationship. To reduce this risk, and as a courtesy if nothing else, he may wish to let his colleague's attorney know why he has made that decision so that he can convey the reasons to his colleague in a way that may help him understand his colleagues reasons.
