Attorneys often retain expert witnesses to consult on a case, to testify at trial or deposition, or to provide a formal written opinion to the court.  Like any other professional engagement, the process usually involves several communications, back and forth, between the attorney and the expert witness, often including preliminary written or oral opinions.

Imagine if you were retained as a medical expert witness,  had written a rough draft, preliminary opinion, and submitted it, mistakes and all, for initial consideration. Then, imagine if this document had been used in court without your knowledge, and the next thing you know, you’re being disciplined based on the quality of the document. 

Something like this actually took place, and the results may have lasting results for those in the medical community. In May, a California jury determined that the American Academy of Orthopedic Surgeons (AAOS) was liable for falsely portraying an orthopedic surgeon after he had acted as an expert witness in a medical negligence case. It seems that the AAOS had suspended the medical expert for allegedly providing improper testimony in the case. Normally, the AAOS would have every legal right to discipline the doctor, but here’s the catch: According to the doctor, the “expert testimony” used in the negligence case was the preliminary report  he had submitted to the plaintiff’s attorney who retained him. It was, therefore, not meant to be used in court. Even worse, according to the doctor, the plaintiff’s attorney had removed the words “draft report” without the doctor’s knowledge. This, in itself, is questionable behavior.  For the AAOS to then suspend the Medical Expert and falsely portray him in its publication is certainly overstepping. This, at least, was the finding of the jury, though of course the AAOS is doing all it can to fight this verdict. It is worth mentioning that the jury verdict awarded damages to the doctor against the law firm as well.

 This is a unique case that could have profound implications, not just for the AAOS but for the medical industry as a whole. If a precedent has been set that expert witnesses can successfully sue medical societies, then this is certain to send shock waves throughout the medical community. Expert witnesses should be permitted to submit preliminary drafts before finalizing the report that will actually be used in court. More importantly, no one—attorney or otherwise—should have the right to alter a draft report and misrepresent it as expert testimony. Furthermore, this case, which is among the first instances of an expert witness successfully challenging a medical society’s disciplinary action in court, may compel these societies to think twice before committing what is essentially libel.

As we might expect, this story is far from over – we could say that it’s still in the “draft report” phase. Judging from what happened to one medical expert, it’s probably wise to keep that draft report in safe keeping….

Posted by Experts-Blog

3 Comments

  1. The answer is: “YES”.

    Please refer to the antecedant FL First District Appellate Court Decision several years ago which to my knowledge was the first case defining the precedent of an Expert in a Tampa Claimant Stroke Med-Mal Case whereby the Claimant expert successfully challenged the Medical Society by successfully suing the Florida medical Association (FMA) for among other claims: Libeling the Expert for unspecified damages by placing him in the FMA’s FEWA as an extrajudicial FMA review process (without the right for a FEWA Appeal) for behaving as a “Medical Terrorist” in his profession when testifyng in court; consequently the defendant doctors (with an appeal purportedly pending from the initial local FL defendant physicians, on the heels of the original DEFENSE verdict) “teamed up” (and “conspired”) with the FMA to intended to Libel and Intimidate and Harass Dr. Fullerton, while misguidedly “hiding” under the cloak of a traditionally-established hospital-credentialing Peer Review Privilege to “block” the non-RICO charges from proceeding. Please review the seminal case from the FL Appellate 1st Distric Court: Fullerton v. FMA, et al for details.

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  2. The expert witness should occupy an unfettered role to independently testify in a case without fear of retaliation from the opposong counsel’s lawyers and experts as well the local medical society. We should also as experts within our jury system hold grounded constitutional beliefs in the power of dueling experts in an unfettered courtroom (and post-tria) environment) to get at the “truth” in the areas of fact disputes and allow the juries to determine the outcomes based upon the awesome power of cross examination to “weed out” weak and/or inadequate testimony and thereby expose the weaknesses and strengths of the case in the process. It send the wrong message and in constitutionally unfounded to propose extrajudicial local panels via local societies (who the docs are tyically members of or even leaders of) to circumvent the jurors and the trial by jury system our founding fathers and history have supported and established as our foundation of the right of a Claimant to a fair trial with jurors as peers (with the right to Appeal if necessary).

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  3. What was the name/citation of the California case?

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