Sunday, August 21, 2011

Coping with Plaintiff Expert Witnesses

Nice review of the subject at the above link.

"Most state medical boards have the authority to discipline doctors found to have provided unethical witness testimony, said Lisa Robin, chief advocacy officer of the Federation of State Medical Boards. However, each board's process of investigating complaints and enacting discipline differs. Whether states have jurisdiction to punish out-of-area doctors also varies, Robin said.
The American Academy of Emergency Medicine publishes expert witness testimony online.
In Mississippi, doctors from out of state who give deceptive testimony can be prohibited by court injunction from testifying in future cases. The state medical board also can revoke the licenses of doctors who provide false testimony and charge physicians up to $10,000 for investigating a case."

The litigation privilege will trump any licensing authority sanctions, and will be reversed by the courts. The courts want witnesses to be immune for their testimony, however false. This privilege is supported by the Supreme Court in a case where a police officer could not be sued for lying on the stand and sending an innocent defendant to prison for a few years.  Little hope for doctors if the immunity is that extreme and even covers the crime of perjury.

Doctors should still report unprofessional conduct to all the licensing boards of the witness. It is just a moral obligation, and a legal one in some states, where there is mandated reporting of unprofessional conduct. Take each shady statement, and report it to each board once a month, so that the h witness remains under investigation for years. I am not aware of any statute of limitations for licensing board reporting.

Some boards will reply that testifying at a malpractice trial is not an act of medicine. It most definitely is. It is an act of super-medicine. It tells the doctors of the state what the standard of due care in a medical matter is.

2) Most of the recourse against plaintiff experts has to be found inside the trial itself. Defense counsel has a conflict of interest making money from having a rial. So they will resists acting against plaintiff experts. One must hire a second private attorney to terrorize the insurance company lawyer into acting a bit different, attacking the expert and seeking to end the trial before it begins.

3) Disqualify the expert.

4) Find a false fact uttered by reading every word uttered by the expert. Demand a mistrial and all legal costs assessed to the personal assets of the expert. Opinion has the protection of the First Amendment. False testimony about facts is perjury and not privileged. For example, the expert claims to have read a document and has not. He claims to have researched an article and has not.

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