Addressing Inappropriate Expert Testimony Print
Written by Mike Sacopulos, JD   
Wednesday, 30 March 2011 08:58

Medical Justice:   Medico-Legal Q&A   

Q:    Recently I sat through a medical malpractice trial as a defendant. The experience was awful. Without getting into the particulars of the case, the matter was advanced by my former patient's attorney and expert witness. In fact, the "expert" testified against me and stated some truly outrageous "facts." Further, this expert no longer practices surgery and never performed the procedure which was the subject of the case against me. This expert's said testimony was clearly out of bounds. The world is a worse place because of his existence. I would like to take action against him, but my attorney says I have no grounds to sue. Could this possibly be right? What legal actions do I have?

A:    I am sorry to hear your experience, but unfortunately I must tell you I am not surprised. I am sure that you feel victimized by the legal system. Now, hold on tight, you are not going to like the first part of my answer.

A party to a lawsuit does not have a legal right to sue the opposing party's witness. The basis is for this, is that you cannot sue an individual that owes no duty to you. Whether you like it or not, you have no right to sue the expert witness that testified against you in the malpractice case. This is a general principle of law that applies in all fifty states and has its origin in British common law from centuries ago.

However, you are not without some legal options. In many states, the offering of testimony as an expert witness is considered the "practice of medicine." This means that a licensing board can review an expert witness's testimony.  If the testimony is truly "out-of-bounds" as you described, a licensing board may sanction the expert witness for the testimony offered against you. Another powerful option is to initiate an action before the expert's professional society.

Starting in the 1990's, professional societies began implementing and enforcing codes of conduct. In the landmark case of Austin v. The American Academy of Neurological Surgeons, the 7th Circuit Court of Appeals found that professional societies have a right to discipline their members and uphold standards for the association. Many, if not most, of professional societies now have some form of disciplinary proceedings to address malicious or factually inaccurate testimony by one of its members. Punishments implemented by these professional societies range from a private reprimand to a permanent expulsion. Discipline by one of these organizations can do more than just professionally embarrass an expert witness. They tarnish the credentials of the expert witness as to make him or her no longer desirable to serve as an expert witness in other future medical malpractice cases.

These techniques and others have been successfully utilized by Medical Justice on behalf of its members. While you may not have a right to sue the expert, there are other avenues that can lead to justice. 

Mike Sacopulos, JD, is general counsel for Medical Justice.  Run by physicians for physicians, Medical Justice is a membership-based organization that offers proven services and proprietary methods to protect physicians' most valuable assets - their practice and reputation. The company offers proactive services to deter frivolous medical malpractice lawsuits prevent Internet defamation and provide proven strategies for successful counterclaim prosecution. Medical Justice works as a supplement to conventional professional liability insurance.

Have a legal question?  Just ASK MIKE and your question will be addressed in an upcoming issue of FHIweekly. 


Last Updated on Wednesday, 13 April 2011 15:21