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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.
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