Debate over policing expert witnesses continues in courts

October 1, 2006

Should testimony from expert witnesses be considered the practice of medicine and therefore, subject to review by state medical boards? Or, should such testimony be viewed as an opinion that is not subject to review? That's the debate that physicians and now the courts are grappling with. And based on recent rulings from two separate courts, the debate is unlikely to die down soon.

Should testimony from expert witnesses be considered the practice of medicine and therefore, subject to review by state medical boards? Or, should such testimony be viewed as an opinion that is not subject to review? That's the debate that physicians and now the courts are grappling with. And based on recent rulings from two separate courts, the debate is unlikely to die down soon.

On the one hand, a court in Kansas has determined that "reporting questionable medical expert testimony is a 'professional review action' under the federal Health Care Quality Improvement Act and that complaints filed through the program are immune from lawsuits," reported American Medical News (8/21/2006). In this case, Oklahoma ob/gyn J. Clark Bundren sued Kansas ob/gyn Joel Parriott for defamation. The lawsuit was filed after Parriott filed a complaint with the American College of Obstetricians and Gynecologists (a group both ob/gyns belonged to), alleging that Bundren had misrepresented medical facts in a deposition against Parriott. Bundren denied the allegation and filed the defamation lawsuit. The U.S. District Court for the District of Kansas dismissed the case, and the decision is being appealed.

In contrast, a court in Florida determined that neither state nor federal laws clearly state whether medical expert testimony should be subject to peer review. In this case, John Fullerton, a California internist and geriatrician, sued the Florida Medical Association and three neurologists, after they alleged he presented false testimony in a medical malpractice case in which they were exonerated. The Florida appeals court has allowed the defamation lawsuit to go forward, as federal and state statutes "provide no immunity to the defendants."