Medical Associations And Doctors Can Be Sued For Expert Testimony Criticisms

July 2006

In what may be the first case of its kind in the country, a California physician obtained a ruling that a medical association and its member doctors are not immune from liability.  The association and doctors had attempted to discipline a doctor who testified as a plaintiff-side expert witness.  The Court ruled that federal and state laws governing physician peer review do not immunize the reviewing groups from liability.

The Florida case involved with this ruling follows a North Carolina case last month in which an appellate court reversed sanctions imposed against a plaintiff-side medical expert in connection with his testimony.  Both current cases distinguish their situation from a 7^th U.S. Circuit Court of Appeals ruling in 2001 that discouraged doctors from challenging medical association programs involving expert testimony.  In the 2001 case, Donald Austin (a neurologist) unsuccessfully claimed that he had been denied due process and that his ability to earn money as an expert witness had been seriously diminished.

In 1998, the American Medical Association (AMA) adopted a policy that testifying as an expert amounted to the practice of medicine that should be regulated by state medical boards and peer review.  The AMA also encourages its members to report instances of allegedly fraudulent testimony to those boards. As a result, more and more medical societies have begun to sanction members with penalties like suspension or revocation of their society membership.  These professional penalties effectively control expert testimony, because few lawyers want to hire a doctor censured as a witness by his own professional organization.

Following the AMA's lead, various national and state medical associations have programs to sanction doctors who the associations claim have provided improper expert testimony.  The actions have almost exclusively targeted plaintiff-side experts.  The medical groups contend that these doctors improperly enrich themselves with novel theories, and are one of the reasons for increased medical malpractice insurance costs.

In response, the doctor in the recent successful case (John Fullerton, an internist) claims that the medical association efforts "are organized for the purpose of intimidating, hindering, and deterring persons … from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice."

In addition to peer review threats, geographic constraints also decrease the pool of potential medical expert witnesses.  A number of states and medical associations now require that doctors be licensed in that state to provide expert testimony.

The remedy for "junk science" testimony remains careful review by the courts in fulfilling their evidence gate keeping function.  In recent years, courts have become even more aware of this need, and active in precluding testimony that does not meet the minimum standards.

Fulcrum Inquiry is a licensed accounting firm that regularly provides expert testimony regarding damages, financial investigations, and appraisals