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….