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David Lowe
David Lowe
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Intimidation of Expert Witnesses for Malpractice Victims Blocks Access To The Courts

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It is always a challenge for the malpractice victim to find a qualified doctor willing to stand up in court and point the finger at another member of the profession who has committed malpractice. Most potential experts are specialists who depend on referrals from general practice doctors and others in the same community. Testifying against a colleague in the community can be the death knell for future patient referrals to the testifying doctor. Beyond that, there is a growing campaign by the bodies that certify medical specialists to dissuade their members from serving as experts for malpractice victims by imposing discipline against expert witnesses for their pro-plaintiff testimony and seeking to expel them from membership.

On the other hand, it is not difficult for an accused doctor to find a colleague willing to testify in the defense of his handling of a case of patient care. Such is the challenge for those of us who agree to represent medical malpractice victims seeking compensation for their injuries.

It has become all the more challenging for a Florida man whose attorney hired a heart surgeon to testify about malpractice by a Veterans Administration doctor’s malpractice. Taking expert witness intimidation to new a new level, the VA’s defense attorney (from the civil side of the United State’s Attorney’s office) referred the heart surgeon for criminal prosecution for allegedly exaggerating the number of similar cases he had acted as lead surgeon. A colleague at the same United States Attorney’s office was only too happy to oblige, and has now secured an indictment charging the expert witness with fraud for the manner in which he described his surgical experience.

It is unfortunate to see intimidation of physicians who see that it is part of their responsibility to the profession to help police its own ranks. Blogger Day of Torts quotes an interesting letter from a physician who writes anonymously against such intimidation of expert witnesses:

I think the current approach, which appears to emphasize suppressing lawsuits, is very misguided. When I signed on to my specialty society, I know I agreed to follow their bylaws but I never dreamed this would subject me to abuse by a “kangaroo court” bent on killing off expert witnesses.

But for me this is simply not a significant enough source of income. I don’t have the time, the energy or the resources to fight this, at least not individually. I hope that those who have more of an interest in this subject will campaign against the efforts of the various medical specialists to suppress malpractice cases.

Added to caps on damage awards, expert witness intimidation is yet another unfair obtacle placed in the path of innocent victims who seek to have their day in court in an effort to obtain compensation.