The International Community Weighs in on Witness Immunity

The question of whether expert witnesses should be immune from disciplinary action when they testify as experts in medical malpractice trials is not just an American issue. Medical societies and courts worldwide are grappling with the subject and their decisions can inform discussions in our own country.

This doctrine has been recognized in the United States as well as in the United Kingdom, Australia, New Zealand, Canada and Ireland. English common law dating from the 19th century, if not earlier, held that no action would lie against a witness for words spoken in the course of providing evidence, even where such testimony or evidence given was false, if not malicious, negligent, or defamatory. The doctrine has evolved and extended beyond the doors of the courtroom, and includes application to the preparation of reports, affidavits, and conduct during preliminary examinations which may result in courtroom testimony.

The underlying rationale for the immunity doctrine has traditionally been that it promotes several objectives, including encouraging witnesses to give evidence “freely and fearlessly,” and to avoid a potential multiplicity of actions in which the value or truth of their evidence would be tried over and over again.

Recent Cases in Britain and Australia

As in the United States, courts worldwide are still trying to work out the parameters of the law on testimonial immunity.

In the landmark decision of General Medical Council vs. Meadow, the English Court of Appeal determined that the principle of “witness immunity” does not protect experts from accountability to their regulatory bodies for substandard forensic work or work completed in preparation for courtroom testimony. General Medical Council vs. Meadow (2006) EWCA Civ 1390 Case No: CO/5763/2005. The highly publicized case involved Professor Sir Roy Meadow, a forensic pediatrician who testified against Sally Clark, a lawyer who was charged with murdering her two children. Her conviction, based in part on Professor Meadow's testimony, was subsequently quashed by the Court of Appeal.

A professional regulatory body, the United Kingdom Fitness to Practice Panel of the General Medical Council, was called upon in 2005 to evaluate Professor Meadow's conduct as he assisted the local police in their investigation. Professor Meadow considered himself qualified to give expert evidence as to child abuse and unnatural infant deaths, including SIDS (Sudden Infant Death Syndrome) deaths, the probability of occurrence and recurrence of SIDS deaths within a family, and the statistical consideration of data on such matters. The regulatory Panel found, however, that Professor Meadow failed in his duties to familiarize himself with all of the relevant data sufficient to provide competent and impartial testimony. It concluded that he had not discharged his obligation to refrain from offering expert witness testimony on matters beyond his expertise or competence. Significantly, the panel concluded that Professor Meadow's errors were so serious that, in spite of his excellent reputation and contributions to medicine up until that time, it had no option but to strike his name from the medical register.

The Panel decision was appealed to the Queens Bench division of the High Court, where that court, for the first time, extended the immunity doctrine to prevent initiation of disciplinary proceedings. In turn, the General Medical Council then successfully appealed the decision to the Court of Appeal, which unanimously found that Professor Meadow engaged in misconduct. The court vaguely repudiated the proposition that expert witnesses are not subject to disciplinary proceedings for conduct arising out of the discharge of their forensic obligations during the investigation and testimonial phases of litigation. The members of the court disagreed on the degree of Professor Meadow's culpability, but unanimously held that his conduct deserved censure and was in breach of the standards of behavior expected by British courts for expert report writers and witnesses.

Similarly, the Full Court of the South Australian Supreme Court heard a challenge to the state's Medical Board as it attempted to conduct a hearing in relation to the conduct of a forensic pathologist. The complaint related to the interpretation of bruises on the leg of a deceased person; the complaint was made by the person charged with the murder of the deceased individual. The doctor had written a report at the request of the prosecution and then offered related testimony at trial. In an opinion issued just prior to the Court of Appeal ruling in Meadow, the South Australian Supreme Court held that an expert witness should “be accountable to his or her professional peers when a member of the public makes a complaint of unprofessional conduct.” James v. Medical Board of South Australia and Keogh [2006] SASC 267, Supreme Court of South Australia – Full Court: Civil.

Evolving Law in the United States

Perhaps the most well known American precedent is that of Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Circuit, 2001). The Austin case involved a neurosurgeon suspended by the American Association of Neurological Surgeons after testifying problematically for a plaintiff as an expert witness in a medical malpractice action. The U.S. Court of Appeals for the Seventh Circuit upheld
the suspension, determining that the testimony was “irresponsible” and violated the Association's ethical code to “provide the court with accurate and verifiable opinions on the matters in hand.”

More recently, the Federal Health Care Quality Improvement Act (HCQIA), 42 U.S.C. ” 1101-11152, was placed in issue when a professional challenge was made to a physician's testimony during a medical malpractice case. Fullerton v. Florida Medical Ass'n Inc., 973 So.2d 1144 (Fla.App. 1 Dist.,2006). Dr. Fullerton had testified as an expert witness in a medical malpractice action. After entry of defense judgments, the defendants forwarded letters to the Florida Medical Association complaining that Dr. Fullerton's testimony and opinion fell below reasonable professional standards. They said not only was the testimony made “for the sole purpose of propagating a frivolous lawsuit for financial gain,” but it also included “false testimony and false theories” of improper medical care. Dr. Fullerton sued the letter writing physicians and the Florida Medical Association (a professional peer review association), alleging, among other things, defamation and witness intimidation.

The defendants filed motions to dismiss, alleging that the claims were barred by state and federal immunity statutes. The trial court determined that statutory immunity was present under state law and the HCQIA and it granted the motions to dismiss. In a reversal entered on appeal, the appellate court determined that the HCQIA did not immunize from liability professional review of a physician's testimony given in a medical malpractice action. Accordingly, the Act did not shield the medical association, its peer review committee, or the physicians, who filed the original complaints with the committee, from potential liability in the plaintiff physician's defamation action. The appellate court concluded, inter alia, that the HCQIA's definition of “professional review action” included review of the professional conduct of a physician that might affect his patient's health, with the result that his right to clinical privileges or membership in a professional society could be impacted. However, the court further determined that nothing in the language of the Act “expressly provided or reasonably implies” that a governing professional body was empowered to review the quality of a physician's evidence in a professional malpractice action. Significantly, the Fullerton court expressed its disagreement with the Seventh Circuit's comments in Austin, which implied that the HCQIA authorized a professional body's review of the quality of a physician's testimony in a malpractice action. The court also emphasized the fact that Dr. Fullerton, unlike like Dr. Austin, was not a member of the professional association that adjudicated the complaint to discipline him.

At least one professional society, the American Associations of Neurological Surgeons (AANS), focused upon this issue long before the court decisions summarized above. A grievance program was established by the AANS in 1983. Since that time, its Professional Conduct Committee has received 50 to 60 complaints regarding expert testimony. So far, it has expelled five members, suspended 22 and censured nine. (This is the same program that was under attack in the Austin litigation.)

It appears to remain true that many professional societies do not have specific codes of conduct related to forensic work, beyond general principles of honesty and avoidance of conflicts of interest. The American Academy of Psychiatry and the Law has developed comprehensive guidelines for ethical conduct by forensic psychiatrists. All members are required to have membership in either the American Psychiatric Association or the American Academy of Child and Adolescent Psychiatry. When the American Academy of Psychiatry and Law receives reports of unethical or unprofessional conduct by a member, it refers the complaining party to the appropriate ethics committee of the APA or the American Academy of Child and Adolescent Psychiatry. If a finding is made that a breach of ethics has occurred, the member may be subject to censure by the governing professional society.

Conclusion

Britain's Meadow decision is consistent with the law as it is evolving in both the United States and Australia, among other jurisdictions. The issue of appropriate and ethical expert witness testimony has received both national and international attention, and will undoubtedly continue to do so. While it remains clear that the great majority of cases involving such testimony and evidence will not precipitate regulatory disciplinary challenges, it is equally true that the issue remains in the forefront of professional societies concerned with the testimony given by their members in both state and federal courtrooms.

Michael D. Brophy, a member of this newsletter's Board of Editors, is with Goldberg Segalla LLP, in Philadelphia.

The question of whether expert witnesses should be immune from disciplinary action when they testify as experts in medical malpractice trials is not just an American issue. Medical societies and courts worldwide are grappling with the subject and their decisions can inform discussions in our own country.

This doctrine has been recognized in the United States as well as in the United Kingdom, Australia, New Zealand, Canada and Ireland. English common law dating from the 19th century, if not earlier, held that no action would lie against a witness for words spoken in the course of providing evidence, even where such testimony or evidence given was false, if not malicious, negligent, or defamatory. The doctrine has evolved and extended beyond the doors of the courtroom, and includes application to the preparation of reports, affidavits, and conduct during preliminary examinations which may result in courtroom testimony.

The underlying rationale for the immunity doctrine has traditionally been that it promotes several objectives, including encouraging witnesses to give evidence “freely and fearlessly,” and to avoid a potential multiplicity of actions in which the value or truth of their evidence would be tried over and over again.

Recent Cases in Britain and Australia

As in the United States, courts worldwide are still trying to work out the parameters of the law on testimonial immunity.

In the landmark decision of General Medical Council vs. Meadow, the English Court of Appeal determined that the principle of “witness immunity” does not protect experts from accountability to their regulatory bodies for substandard forensic work or work completed in preparation for courtroom testimony. General Medical Council vs. Meadow (2006) EWCA Civ 1390 Case No: CO/5763/2005. The highly publicized case involved Professor Sir Roy Meadow, a forensic pediatrician who testified against Sally Clark, a lawyer who was charged with murdering her two children. Her conviction, based in part on Professor Meadow's testimony, was subsequently quashed by the Court of Appeal.

A professional regulatory body, the United Kingdom Fitness to Practice Panel of the General Medical Council, was called upon in 2005 to evaluate Professor Meadow's conduct as he assisted the local police in their investigation. Professor Meadow considered himself qualified to give expert evidence as to child abuse and unnatural infant deaths, including SIDS (Sudden Infant Death Syndrome) deaths, the probability of occurrence and recurrence of SIDS deaths within a family, and the statistical consideration of data on such matters. The regulatory Panel found, however, that Professor Meadow failed in his duties to familiarize himself with all of the relevant data sufficient to provide competent and impartial testimony. It concluded that he had not discharged his obligation to refrain from offering expert witness testimony on matters beyond his expertise or competence. Significantly, the panel concluded that Professor Meadow's errors were so serious that, in spite of his excellent reputation and contributions to medicine up until that time, it had no option but to strike his name from the medical register.

The Panel decision was appealed to the Queens Bench division of the High Court, where that court, for the first time, extended the immunity doctrine to prevent initiation of disciplinary proceedings. In turn, the General Medical Council then successfully appealed the decision to the Court of Appeal, which unanimously found that Professor Meadow engaged in misconduct. The court vaguely repudiated the proposition that expert witnesses are not subject to disciplinary proceedings for conduct arising out of the discharge of their forensic obligations during the investigation and testimonial phases of litigation. The members of the court disagreed on the degree of Professor Meadow's culpability, but unanimously held that his conduct deserved censure and was in breach of the standards of behavior expected by British courts for expert report writers and witnesses.

Similarly, the Full Court of the South Australian Supreme Court heard a challenge to the state's Medical Board as it attempted to conduct a hearing in relation to the conduct of a forensic pathologist. The complaint related to the interpretation of bruises on the leg of a deceased person; the complaint was made by the person charged with the murder of the deceased individual. The doctor had written a report at the request of the prosecution and then offered related testimony at trial. In an opinion issued just prior to the Court of Appeal ruling in Meadow, the South Australian Supreme Court held that an expert witness should “be accountable to his or her professional peers when a member of the public makes a complaint of unprofessional conduct.” James v. Medical Board of South Australia and Keogh [2006] SASC 267, Supreme Court of South Australia – Full Court: Civil.

Evolving Law in the United States

Perhaps the most well known American precedent is that of Austin v. American Association of Neurological Surgeons , 253 F.3d 967 (7th Circuit, 2001). The Austin case involved a neurosurgeon suspended by the American Association of Neurological Surgeons after testifying problematically for a plaintiff as an expert witness in a medical malpractice action. The U.S. Court of Appeals for the Seventh Circuit upheld
the suspension, determining that the testimony was “irresponsible” and violated the Association's ethical code to “provide the court with accurate and verifiable opinions on the matters in hand.”

More recently, the Federal Health Care Quality Improvement Act (HCQIA), 42 U.S.C. ” 1101-11152, was placed in issue when a professional challenge was made to a physician's testimony during a medical malpractice case. Fullerton v. Florida Medical Ass'n Inc. , 973 So.2d 1144 (Fla.App. 1 Dist.,2006). Dr. Fullerton had testified as an expert witness in a medical malpractice action. After entry of defense judgments, the defendants forwarded letters to the Florida Medical Association complaining that Dr. Fullerton's testimony and opinion fell below reasonable professional standards. They said not only was the testimony made “for the sole purpose of propagating a frivolous lawsuit for financial gain,” but it also included “false testimony and false theories” of improper medical care. Dr. Fullerton sued the letter writing physicians and the Florida Medical Association (a professional peer review association), alleging, among other things, defamation and witness intimidation.

The defendants filed motions to dismiss, alleging that the claims were barred by state and federal immunity statutes. The trial court determined that statutory immunity was present under state law and the HCQIA and it granted the motions to dismiss. In a reversal entered on appeal, the appellate court determined that the HCQIA did not immunize from liability professional review of a physician's testimony given in a medical malpractice action. Accordingly, the Act did not shield the medical association, its peer review committee, or the physicians, who filed the original complaints with the committee, from potential liability in the plaintiff physician's defamation action. The appellate court concluded, inter alia, that the HCQIA's definition of “professional review action” included review of the professional conduct of a physician that might affect his patient's health, with the result that his right to clinical privileges or membership in a professional society could be impacted. However, the court further determined that nothing in the language of the Act “expressly provided or reasonably implies” that a governing professional body was empowered to review the quality of a physician's evidence in a professional malpractice action. Significantly, the Fullerton court expressed its disagreement with the Seventh Circuit's comments in Austin, which implied that the HCQIA authorized a professional body's review of the quality of a physician's testimony in a malpractice action. The court also emphasized the fact that Dr. Fullerton, unlike like Dr. Austin, was not a member of the professional association that adjudicated the complaint to discipline him.

At least one professional society, the American Associations of Neurological Surgeons (AANS), focused upon this issue long before the court decisions summarized above. A grievance program was established by the AANS in 1983. Since that time, its Professional Conduct Committee has received 50 to 60 complaints regarding expert testimony. So far, it has expelled five members, suspended 22 and censured nine. (This is the same program that was under attack in the Austin litigation.)

It appears to remain true that many professional societies do not have specific codes of conduct related to forensic work, beyond general principles of honesty and avoidance of conflicts of interest. The American Academy of Psychiatry and the Law has developed comprehensive guidelines for ethical conduct by forensic psychiatrists. All members are required to have membership in either the American Psychiatric Association or the American Academy of Child and Adolescent Psychiatry. When the American Academy of Psychiatry and Law receives reports of unethical or unprofessional conduct by a member, it refers the complaining party to the appropriate ethics committee of the APA or the American Academy of Child and Adolescent Psychiatry. If a finding is made that a breach of ethics has occurred, the member may be subject to censure by the governing professional society.

Conclusion

Britain's Meadow decision is consistent with the law as it is evolving in both the United States and Australia, among other jurisdictions. The issue of appropriate and ethical expert witness testimony has received both national and international attention, and will undoubtedly continue to do so. While it remains clear that the great majority of cases involving such testimony and evidence will not precipitate regulatory disciplinary challenges, it is equally true that the issue remains in the forefront of professional societies concerned with the testimony given by their members in both state and federal courtrooms.

Michael D. Brophy, a member of this newsletter's Board of Editors, is with Goldberg Segalla LLP, in Philadelphia.