Malpractice Consult

By Lee J. Johnson, JD

Get even with a hired gun?

•  It's hard to win a slander suit against an expert witness.

• False testimony can be punished; opinions generally cannot.

• Be careful how you "expose" a witness's testimony.

Q: An expert witness gave outrageous testimony against me in a malpractice trial, offering unfounded theories that would make any knowledgeable physician cringe. The jury found for me, but I'm enraged at this doctor's conduct. Can I sue him for slander? Will any action be taken if I file complaints with our specialty society or his state licensing board? I'd like to embarrass the expert by mailing excerpts of his testimony to his fellow specialists. Can the witness sue me if my letter is truthful and quotes the trial transcript accurately?

A: Your desire for revenge is understandable, but you need to take a deep breath first. It's highly unlikely that you can successfully sue this doctor for slander, which is essentially a false statement that causes damage. In a malpractice trial, the issue of whether a doctor departed from the applicable standard of care is a matter of opinion. Only doctors who are qualified by the judge to have sufficient expertise in the specialty of the defendant doctor are permitted to offer their opinion to the jury. However fanciful you found his testimony, it's doubtful that a court would find that he made provably false statements of fact that caused you tangible damage.

Still, some specialty and state medical societies are trying to hold expert witnesses accountable for their testimony. The Florida Medical Association, in particular, thinks there should be peer review actions and sanctions against experts who provide opinions that can't be supported by science and the medical literature. The organization has conducted peer review hearings, and has encouraged disciplinary action by specialty societies and state boards.

Even so, these bodies are more likely to act against a physician when it can be proven that he testified falsely about a fact, such as lying about his credentials. A state licensing agency would likely take action only if the behavior meets the definition of professional misconduct, such as gross negligence or criminal activity. Unfortunately, slanted expert testimony probably doesn't qualify.

Your plan to publicize the expert's testimony to his colleagues could indeed embarrass him and thereby dissuade future questionable testimony. Since truth is the best defense in a libel action, he probably wouldn't win a libel suit as long as you quoted his trial testimony accurately.

However, it's still a risky tactic. The witness could win a suit against you for harassment and interference with his business relationships. Let's say you sent excerpts of his testimony to physicians who might refer to him. The expert could allege that your actions serve no legitimate purpose other than to annoy and cause emotional distress. He'd argue that you're attempting to disrupt his business relationships. Since your stated goal is to embarrass the witness, he may have a good case.

A better idea might be to write an article for your medical society journal or malpractice insurance newsletter about your experiences at trial. You could still include the name of the expert and give the gist of his testimony. That might discourage similar outlandish testimony by others. But you'd be serving a legitimate educational purpose for your colleagues, rather than engaging in a personal vendetta.

 

Lee Johnson. Malpractice Consult: Get even with a hired gun?. Medical Economics May 9, 2003;80:120.