As an expert witness, can I be sued?

May 19, 2014

Dr. Expert has been in practice for 15 years and is has treated thousands of patients with psoriasis. He was requested to serve as an expert witness for another dermatologist involving dosing of methotrexate. It is determined that Dr. Expert’s resulting testimony is wrong based on improper calculations by a “hired” dermatology resident. Can an expert be sued for malpractice?

Dr. Expert is a well-respected dermatologist in his community. He has been in practice for 15 years and is has treated thousands of patients with psoriasis. Because of his vast experience treating this disease, he was requested by a law firm in his community to serve as an expert witness for another dermatologist.

The case against the other dermatologist involved dosing of methotrexate for the treatment of psoriasis. Despite Dr. Expert’s vast experience in treating this disease, he has never used methotrexate in his practice. Nevertheless, he has served as an expert on many cases during his career and is determined to learn the relevant materials necessary to testify in this case. He hires a dermatology resident who researches all the relevant materials and presents them to Dr. Expert, who then formulates a report and subsequent testimony based on this information.

During testimony, it is determined that Dr. Expert’s testimony is wrong based on improper calculations by the “hired” dermatology resident. This undermined his entire testimony and the suing plaintiff moved to have the expert’s testimony stricken from the record. This left the defendant physician in an untenable situation. He was forced to settle with the plaintiff.

The defendant physician then sued Dr. Expert for breach of contract and professional malpractice. Can an expert be sued for malpractice?

Next: The principle of witness immunity

 

 

Witness immunity

Traditionally, the principle of witness immunity bars an expert from being sued for malpractice. This is based on the witness immunity doctrine drawn from the United States Supreme Court decision of Briscoe v. LaHue, 460 U.S. 325 (1983). The immunity of expert witnesses from subsequent liability and damages for their testimony in judicial proceedings was established in early common law.

Early court decisions implied that a plaintiff could not recover even if the witness knew that expert statements were false and made with malice. 19th century courts held to the view that claims of an individual must yield to the dictates of public policy. Such public policy required that “the paths which lead to the ascertainment of truth should be left as free an unobstructed as possible.”

A witness’ apprehension of subsequent damage liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. Then, once on the witness stand, the expert’s testimony might be distorted by fear of subsequent liability. Even within the constraints of the witness’ oath there may a wide variation in the ways to state an opinion. These variations may be more or less detailed and may differ in emphasis and certainty.

An expert witness who knows he might be forced to defend himself in a subsequent lawsuit, and perhaps even pay monetary damages, might be inclined to shade his testimony, magnify uncertainties and thus deprive the court of candid, objective and undistorted evidence.

Next: Expert witness liability

 

 

Witness negligence

In Panitz v. Behrend, 632 A.2d 562 (1993), an expert witness changed her testimony before trial when she realized that her prior analysis had been incorrect. The law firm that retained her refused to pay her bill and she sued. The law firm countersued, alleging professional malpractice.

The court, in this case, found that public policy supported witness immunity. The witness had testified truthfully and accurately. The law firm was simply dissatisfied with the outcome of the testimony. The court suggested that allowing the law firm that engaged the expert to sue under these circumstances would encourage experts to shade their testimony toward the side retaining them. This case, though, must be contrasted with a case where the expert showed true negligence. Such a case has recently occurred.

The case of LLMD of Michigan v. Jackson-Cross, WL 972180 (Pa. Oct 26, 1999) explored liability for expert witness negligence. In this non-medical malpractice case, a plaintiff who was suing a lender after a failed business deal, hired an expert to determine “the damages sustained because of the lenders’ failure to close under the mortgage commitments; prepare a signed report outlining what was done, state the conclusions and supporting them, and participate in pre-trial conferences, depositions and trial.” The proposed agreement was put in writing and the expert witness accepted it.

The expert witness then hired a third party to do all the necessary research and calculations. Ultimately, the expert presented this as testimony at trial. During trial cross-examination, the defense found a gross error in the expert calculations. The expert could not explain this because the expert had not done the necessary research and calculations. This so undermined the expert’s testimony that the defense successfully moved to have it stricken from the record.

This left the plaintiff (for whom the expert was to testify) in an untenable situation. The plaintiff was forced to settle for much less than the provable losses. The plaintiff then went and sued the expert for breach of contract and professional malpractice, claiming the expert had “breached its agreement to furnish expert services in connection with the … lawsuit by failing to deliver an accurate and workmanlike lost profits computation, and had failed to exercise the degree of care and skill ordinarily exercised by experts in the field.”

Next: Considering a retainer contract

 

 

Retainer contract

The court distinguished this case from Panitz, finding that this expert had been truly negligent in the preparation of testimony and that the public’s interest in accurate expert testimony would not be advanced by allowing this conduct to be sheltered by the witness immunity doctrine. The court, however, was careful to limit this ruling for fear that it would undermine the policy behind witness immunity.

The court stated, “We caution, however, that our holding, that the witness immunity doctrine does not preclude claims against an expert witness for professional malpractice has limited application. An expert witness may not be held liable merely because another expert or authoritative source challenges his or her opinion. In those circumstances, the judicial process is enhanced by the presentation of different views. Differences of opinion will not suffice to establish liability of an expert witness for professional negligence.”

In our hypothetical case, Dr. Expert has shown the same negligence as the expert in Jackson-Cross. It is expected that in medical malpractice cases that there will be disparate expert views. Occasionally one of those views may even seem ludicrous. Even when that happens, it would be unlikely that the “ludicrous” expert would be sued for negligence. However, when a ludicrous view is presented based on the assistance of others, then the expert is on weaker ground. The testimony must be based on his experience and understanding of the medical literature.

When there is absolutely no basis and foundation for the testimony, Dr. Expert leaves himself in the precarious situation of not only not being paid for his time and efforts, but more importantly leaves open the possibility that he will be sued for negligence.

Such a scenario has tremendous significance for all physicians who serve as an expert witness. Jackson-Cross, decided in Pennsylvania, is an important change in Pennsylvania law. It may also portend a new trend in other states as well. Expert witnesses should consider a retainer contract that bars this type of claim, or at least subjects it to arbitration. 

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