To the contrary, according to the court, the defendant OB “limited himself to advancing a confidential complaint to a peer group in which both parties were members, which might have remained confidential but for” the present litigation.5
What should the parties to a suit expect of an expert witness?
Ideally, physician–expert witnesses should strive to follow the standards for testimony proposed by any state licensing board or professional society to which they are responsible or belong. Most such standards include being sure to review the entire case history before providing an opinion in court and basing opinions on peer-reviewed evidence when such evidence exists.
The goal of the physician–expert witness should be threefold: to put forth the best medical expertise in litigation, to help secure compensation for deserving plaintiffs in true cases of malpractice, and to reduce the impact of frivolous lawsuits on the medical profession.
CASE #2 Revision of a ventricular shunt
The facts of the matter. A lawsuit charged two neurosurgeons with malpractice in managing a ventricular shunt in a patient who had hydrocephalus. The plaintiff’s expert witness, a neurosurgeon, testified in a deposition that:
- the standard of care for managing a patient after a surgical shunt revision wasn’t met
- communication between the two neurosurgeons was faulty
- he “had difficulty believing” statements made by one of the defendants in the medical chart after the patient’s health declined.
The controversy. At a hearing, the medical board agreed that the expert witness engaged in unprofessional conduct on all counts. It revoked his medical license.
The expert witness appealed the decision to the local state court.
That court found no basis for disciplining the expert for his testimony about the applicable standard of care or the communication between the neurosurgeons. It did uphold the charge of testifying improperly that the defendant had falsified medical records.
The medical board altered its punishment, suspending the expert witness’s medical license for 1 year. The expert witness then appealed this suspension to the North Carolina Court of Appeals.
What was the outcome? The appeals court concluded, after “careful review of the record,” that “the substantial record of evidence does not permit an inference that [the expert witness] made an entirely unfounded statement” about the medical record.
The court held that the expert witness’s opinions were based on a review of multiple aspects of the case, including imaging results and reports of the patient’s behavior. According to the court, “these observations provided a good faith evidentiary basis” for the expert’s opinion. The court reversed the medical board’s suspension of the expert witness’s license.6
CASE #3 Poor care after CVA
The facts of the matter. In a medical malpractice action, a group of physicians were charged with negligence in their care of an elderly diabetic patient who suffered a cerebrovascular accident. During the trial, the plaintiff’s expert witness testified that the defendant physicians’ actions did not meet the standard of care. Ultimately, the case was decided in favor of the defendants.
Afterward, the defendant physicians forwarded a complaint to their state physicians’ association (of which the expert witness was not a member), claiming that the expert witness’s testimony was inappropriate and recommending disciplinary action to prevent the profession “from being terrorized by similar experts.”
The controversy. The expert witness sued the defendants and the state physicians’ association to stop the grievance process, claiming defamation, interference with contract, conspiracy, and other counts. The defendant physicians and the physicians’ association countered that the lawsuit should be dismissed because state and federal laws grant immunity to members of medical peer review committees when there is no evidence of intentional fraud.
The trial court agreed with the defendant physicians. The expert witness appealed.
What was the outcome? The court of appeals overturned the trial court’s opinion. It found that state and federal laws do not clearly provide immunity to the defendants.
The court held that the statutes protecting peer review committees were constructed to help evaluate and improve “the quality of health care rendered by providers of health services”—protection that does not necessarily extend to testimony in a malpractice case. The appeals court also found that the state medical association is not afforded immunity “in its role as an examiner of the quality of a non-member physician’s judicial testimony.”