I have previously written a blog article about the amazing efforts by some doctors to try to silence and even revoke the medical licenses of doctors who give honest testimony in medical malpractice cases, almost always on the side of the victim or patient. In other words, when a doctor is sued for malpractice, often the doctor sued does not focus on improving their technique, to avoid another malpractice claim, but instead may focus on “getting even” with the doctor who testified honestly that what occurred may have been negligent conduct. These efforts involve trying to silence or to intimidate any doctor who testifies on behalf of the patient or victim.
A new case arose in Texas. The Texas doctor, only known as “John Doe, M.D.” appealed the trial court’s refusal to issue an injunction which would block the Texas Medical Board from taking disciplinary action against him. He is asking the Texas Court of Appeals to support his position. His Texas lawyer said his client’s reputation would essentially be ruined if the medical board even issues a reprimand to him. His attorney remarked: “the intent of the medical board’s action is to let doctors know if they are willing to testify that another physician in Texas has acted below the standard of care they are subject to disciplinary proceedings — up to and including not being able to practice medicine.” Amazingly, the Texas medical board reviewed 13 medical malpractice cases that the particular doctor had testified in over a prior decade. In fact, the Texas attorney general is supporting the state medical board, and the claim of the medical board is that this physician exaggerated testimony and should have remained neutral when testifying as an expert in medical malpractice suits.
The doctor’s lawyer has argued that his testimony met all of the criteria in the Texas courts for expert testimony and that the medical board’s actions violated the doctor’s First Amendment rights.
The executive director of the Center for Constitutional Litigation, John Vail, noted: “it clearly has the effect of intimidating witnesses and making it more difficult to get witnesses into court, and thereby depriving courts of the information they need to decide cases.”
A recent article in Lawyers Weekly USA also outlined that there are cases on this issue pending in Florida, Louisiana and North Carolina. One of the legal points that is arising from these cases that I suspect will end up being adopted by many courts is that when a physician testifies forensically in court, he is not engaged in the practice of medicine. In my view, the best and most logical argument on why medical boards cannot punish a doctor for providing forensic testimony is that the doctor is not engaged in any part of the practice of medicine when testifying as an expert witness in a courtroom. Accordingly, this type of testimony would not involve a doctor’s actual practice of medicine and would be outside the area which a state medical board should be entitled to regulate at all. Moreover, testimony by a doctor is permitted under the First Amendment and should not be subject to intimidation by threats from a medical board. This issue will play itself out in the next several years, and I believe that the courts will vindicate the right of doctors to testify forensically as they see fit without fear of a revocation of their license-even if that testimony essentially is against another doctor or hospital. Any other rule would be like saying that a a retired detective could not testify against the police force in a criminal case without fear of losing a detective’s license, or that a lawyer could not testify against another lawyer in a legal malpractice case without the State Bar seeking to revoke the lawyer’s license because it is dissatisfied with forensic testimony that could “harm” attorneys.
Our firm, like many firms representing victims, only accepts medical negligence cases when a medical or dental professional is of the opinion that another doctor has been careless or negligent. The civil justice system is one important safeguard that assures a financial disincentive for careless and reckless behavior by physicians especially given the serious consequences of medical errors.
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