© 2009 The Medical-Legal News
• The Gist: Is it a good idea for professional medical associations such as the AMA or the ANA to review expert witness testimony of their members who testify? Should they discipline members for slightly inaccurate testimony? Very inaccurate testimony? What if some “way-out-there” experts are not being accurate or truthful on purpose?
By Dan Clifford, publisher
A plaintiff’s expert witness who had testified opposite two colleague doctors in a medical negligence trial recently sued the two colleagues for defamation, and won.
The colleagues (one a defendant in an eye surgery trial and one the defendant’s expert witness in the trial) had complained about the expert witness in an ethics complaint letter which stated that the witness, also an eye doctor, had given testimony that was not accurate and that fell below the standards set by the American Association of Ophthamology (AAO).
The expert witness had testified at a trial against Dr. Jeffrey Weis, one of the two colleagues, who lost to the tune of $3 million stemming from an eye surgery. The other colleague, Dr. David Hardten, was defendant Weiss’s expert witness.
The crux of the defamation claim centered on what the two defendant doctors told the AAO in the complaint letter about Dr. Charles Yancey, the plaintiff’s expert witness. The defendants said that parts of Yancey’s testimony “were not accurate, and were misleading to the jury and breached Dr. Yancey’s requirement to uphold the standards of the American Association of Ophthamology concerning expert witness testimony.”
The defendants asked for summary judgment, which a judge denied in January.
In the motion for summary judgment, the defendants argued that “opinions” are not actionable for defamation, and that they had only given an opinion about Yancey.
The court rejected the argument and noted that four factors are used to determine if a potentially defamatory statement is fact or opinion: 1) specificity and precision, 2) verifiability, 3) the literary and social context in which the statement was made and 4) the public context.
The judge noted that saying a witness’s testimony is “misleading,” “not accurate” and committed a “breach” was very specific. Also, within the context of an ethics complaint, such a statement would normally be assumed to be factual, subject to verifiability.
The defendants also argued that they had a qualified privilege to communicate trial testimony concerns to their professional organization, as inaccurate testimony could harm the reputation of all ophthamologists. The court agreed that under the rules for claiming a privilege, the defendants did have 1) a proper occasion and 2) a proper purpose. A third element is also necessary to avail oneself of a qualified privilege — reasonable or probable grounds. The judge noted that the defendants did do their homework with regard to investigating Yancey’s testimony, but noted that the ethics complaint may have been done out of malice, as Yancey was testifying against one of them. Further, defendant Weis had indicated in a deposition that he had filed the ethics complaint to motivate Yancey to “alter his testimony.”
The defendants further maintained that the Health Care Quality Improvement Act (HCQIA), concerning professional peer review, protected them. The judge noted a lack of case law on the matter, but finally reasoned that HCQIA is more about the professional conduct of a doctor, which could affect a patient’s health, than about trial testimony.
At a jury trial in February Yancey won $350,000, including $200,000 in compensation for harm to his reputation, mental distress, humiliation and embarrassment.
John Vail, an attorney with The Center for Constitutional Litigation, who represented Yancey, said that peer review of expert witnesses is simply intimidation. He added, “Parties in court have every incentive to root out bad testimony already. They have at their disposal the most powerful tool available — cross examination under oath.”
Vail has his detractors, however, and disagreement about whether professional medical organizations should review or police expert testimony continues.
The Minnesota case was Yancey v. Weiss (Court File No. 27-CV-07-15651).
30-year-old case nets $23M Next Post:
Could a well-intentioned expert witness statute make things worse?