Expert Witness Intimidation
A recent pattern of expert witness intimidation has emerged across the country. Some physicians encouraged by ambitious (to say the least) attorneys, and some professional organizations, are apparently concerned that expert testimony for plaintiffs in medical malpractice cases poses a "threat" to the administration of justice.
John Vail of the American Association of Justice's Center for Constitutional Justice believes that the fury of malpractice defendant physicians, funneled towards colleagues who testify that malpractice did indeed occur, and catalyzed by insurance company pressure to curtail malpractice litigation, has produced new weapons in the war against malpractice plaintiffs: peer review of medical expert testimony and scrutiny of that testimony by licensure boards.
Some states have defined such testimony as the "practice of medicine" and have permitted licensure boards to oversee and consider the testimony in licensing actions. These actions threaten the free flow of information to the courts and chill speech protected by the First Amendment. Wisely, according to Mr. Vail, courts are acting to dampen the threat.
However, credentialing committees and aggressive peer review may still be expected to consider such testimony as long as the AMA and other professional organizations and societies continue to campaign for medical liability "reform" and rail against "trial lawyers."
I am firmly against frivolous lawsuits. When I was chair person of the State Bar of Michigan Standing Committee on Professionalism, our committee addressed this issue, improper advertising by lawyers and lawyer competency, but believed, correctly, that our present Michigan Rules of Professional Conduct, various statutes-, the State Bar of Michigan-and an active Court System--adequately deals with these concerns.
However, the existing court system and vigilant defense lawyers (who also provide services in "trials" and are properly referred to as "trial lawyers" too) have many tools at their disposal to deal with such actions. On the other hand, I believe that physicians and other medical professionals should be able, without fear of retaliation, to support activity designed to compensate victims of malpractice and incompetence and to improve the quality of health care in this country (where the Institute of Medicine has reported that over 98,000 persons die annually from medical errors).
The vast majority of physicians diligently observe the Hippocratic Oath every day in their practices and, of course, care about the quality of services they provide to their patients. Those who don't should be dealt with firmly.
Any physician threatened with adverse or retaliatory consequences for testifying truthfully and in good-faith in a malpractice action should seek the representation of a competent health care lawyer immediately.
