A neurosurgeon who takes on the responsibility to be an expert witness should focus on the evidence, circumstances, nature of treatment, and the standard of care. Therefore, it is mandatory that the expert witness have access to all the case-related information such as the patient’s file, investigations, reports of the treating neurosurgeon, and other witness reports. Sometimes the expert is not supplied with original imaging, only reports – in this case the expert must insist that the lawyer obtain the raw imaging. The expert witness must support his/her testimony with appropriate literature and research. It is important that he/she understands the circumstances, general medical environment, and the standard of care provided by the hospital and the treating neurosurgeon. Furthermore, the accepted guidelines of the concerned court and the instructions should be studied judiciously and should support the preparations and writing of his testimony.

The testimony should present facts and opinions. The standard of performance of the alleged malpractice case should be compared and weighed to the accepted standard of that specialty and in that local area of practice.

In determining any breach of duty of care, falling below the accepted standard of care which would be considered negligent, it is important to take into consideration the standard of care at the time the alleged negligence occurred because it may differ from the practice at the time of litigation due to new techniques, understanding, and technology (Bolam v Friern Hospital Management Committee 1957). Standard practice should be deemed reasonable and not “best practice” since every doctor or hospital cannot provide or meet the best standard of care (i.e. there is always someone somewhere who can “do it better” than any given neurosurgeon).

The expert witness has to state the facts clearly and candidly. The medical terms used should be written in full, detailed, and explained. The testimony has to be signed and dated. Whilst writing the report, the expert has to mentally prepare him/herself to answer any questions related to his/her testimony the court might ask.

The possibility of “wrongful claim review” may occur and expose the expert witness to legal consequences. The medical expert will be held responsible if he/she retains any information or falls short in stating the medical malpractice committed by the defendant neurosurgeon. He/she will also be responsible if he/she omits any available evidence that will prove the defendant guilty.

Unfortunately, some medical experts’ credibility is not always accurate, honest, and unbiased (Brent 1982; Sloan et al. 1989). These surgeons may be making their living being expert witnesses, and their testimonials may be contaminated by their personal opinions and are not based on factual evidence but on unreasonably high expectations of average neurosurgeons. There is often difficulty distinguishing between personal opinion based on personal experience and medical evidence based on well-known and established scientific evidence which follows accepted and reasonable standards of care.

It is accepted that patients and families have the right to file complaints and sue any member of the treating team. However, medical litigation is a nightmare for any neurosurgeon – it is not only devastating psychologically, but it consumes a great deal of time the surgeon would prefer to be spending helping other patients and other constructive pursuits (Charles 1999). Furthermore, it is not optional like accepting to be an expert witness; a sued neurosurgeon must comply. Most neurosurgeons may also consider these cases as threatening to their career and damaging to their reputation. Therefore, the defendant neurosurgeon may show signs of emotional disturbance, which in some cases reflects negatively on his/her practice and family life. The careers of some sued neurosurgeons have been altered as a direct result of medical litigation. It is important for any neurosurgeon who faces such a situation to hold and stick to his/her practice and other regular activities. He/she may be well advised to speak to senior colleagues, hospital leaders, friends, and counsellors for words of wisdom and support.

Recent studies demonstrate a rise in medical litigation cases against medical practitioners. In some of these studies, neurosurgeons top the list (Carrier et al. 2010; Danzon 1986; Jena et al. 2011; Mello et al. 2003; Mohr 1992). Discussing the subject of medical malpractice may send a chill down every neurosurgeon’s spine. Neurosurgery is one of the most rapidly growing subspecialties; what was considered standard a few years ago is by no means standard practice today. The impact of new technology is enormous in the rapid development of neurosurgery. With every application of new technology or method, there is a learning curve which is associated with some risk of unexpected complications. How can neurosurgery grow as a speciality and neurosurgeons obtain new skills to climb their learning curve whilst minimizing the risk of complication and the threat of potential medicolegal consequences?