Sunday, June 20, 2004

A New Twist on Disciplinary Proceedings Against Malpractice Experts

Today's New York Times brings news of a complaint filed before the Florida Medical Association by three doctors seeking sanctions against Dr. John Fullerton, who testified against them in an unsuccessful malpractice suit.

There's nothing very unusual in that. State medical associations are increasingly being asked to punish members who provide expert testimony for plaintiffs in medical malpractice cases.

This particular physician, however, has responded by suing the complaining physicians for libel.

The Times quotes critics who are quick to respond that the defamation action is an example of "lawsuit culture" careening out of control:

"It's something out of Dickens," said Philip K. Howard, the chairman of Common Good, a group advocating changes to what it calls the nation's lawsuit culture. "Why don't these doctors sue back and complain about the complaint? This spins out into the stratosphere, as each person complains about the other person and America descends into a kind of Möbius strip where everyone complains about everything."
At first, Mr. Howard may seem to have a valid point. We started with an actual human transaction -- three physicians treating a stroke victim. We then endured a primary lawsuit (the malpractice action). The primary lawsuit spawned a secondary proceeding (the disciplinary filing with the FMA). With the filing of the defamation action, proceedings have propagated to the tertiary level. Matters having already taken so litigious a turn, it is not unrealistic to imagine a quaternary layer of legal proceedings, if the libel action is unsuccessful -- an action by the three malpractice defendants for malicious prosecution. Where will it all end?

But the Times story buries one salient fact that begins to make Dr. Fullerton's libel claims look a little more reasonable. It transpires, in the twenty-first paragraph of the story, that he is not even a member of the FMA, which therefore lacks any power to discipline him. As the Times puts it, the FMA "has no power to do more than criticize him in a written opinion." In other words, it has only the power to issue a writing injurious to Dr. Fullerton's credibility and reputation, or one that vindicates him, if he prevails.

We are not Florida lawyers, but we have had a quick look at the Restatement (Second) of Torts. Under traditional defamation law, a necessary element of a libel claim is that the defamatory publication be unprivileged. If the FMA did have disciplinary jurisdiction over Dr. Fullerton, the other three physicians might therefore have a plausible argument that their FMA complaint could not form the predicate for tort liability. True, the FMA, in strictness, does not conduct judicial proceedings of the sort where parties and witnesses (including expert witnesses) would enjoy an unconditional privilege against defamation claims. And true, the FMA is not a governmental body, to whose administrative proceedings a comparable privilege might apply. But some plausible case could nevertheless be made that at least a conditional privilege attached to FMA disciplinary proceedings, perhaps under section 598 of the Restatement:

Communication to One Who May Act in the Public Interest

An occasion makes a publication conditionally privileged if the circumstances
induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important public
interest, and

(b) the public interest requires the communication of the defamatory matter
to a public officer or a private citizen who is authorized or privileged to take
action if the defamatory matter is true.
But the prospects of any such defense would seem to dim considerably, if the FMA lacks jurisdiction over the respondent and therefore lacks authority to take disciplinary action against him. Absent such authority, there seems little material difference between the three physicians' FMA complaint and (say) a letter to the editor.

It would be interesting to know whether the complaining physicians knew, when they filed with the FMA, that Dr. Fullerton was beyond its disciplinary reach. If they did, what did their lawyers tell them about the potential risks? In fairness, maybe the three physicians wouldn't have cared. Maybe they felt that if a participant in litigation can't stand the heat, he should stay out of the kitchen. If so, they appear to be in a fight with another physician who feels the same way.


Anonymous writes ...

Having had personal experience with this witness, in a major WD death case, I can say without cavil that he is good at what he does ... but what he does is to stretch beyond reason any decent concept of a SOC, while refusing to directly answer any questions on cross. He well learned that a witness may "finish his answer", and literally gives 10 minute lectures to the simplest question.

4:19 PM  
Anonymous writes ...

May all the other "expert" witnesses who pompously attack other physicians from their IVY walls of Cornell and Yale take note.
The rest of us "working stiff" doctors have only just begun to fight back. Florida is only the first battleground. Let the testifier beware.

3:58 PM  
Anonymous writes ...

although plaintiff's experts often called, defense experts are quite often cowards. Testifying against another physician is necessary; how else would we bring justice to surface? How else can we restore the broken solemn promise and pay back for unmeasarable pain of a loss of a loved one, when physicians are simply indifferent? can else can we get a fair trial then?

11:31 AM  

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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.