Can You Sue an Expert Witness Who Lies?
Can You Sue an Expert Witness Who Lies?
Finding grounds to sue could prove difficult
Gabor D. Kelen, MD, director of the Department of Emergency Medicine at The Johns Hopkins University in Baltimore, says he doesn't think too many truly frivolous lawsuits make it to the courtroom.
"There are unscrupulous lawyers, some of whom are very skilled and may hope to settle for just a little bit of money," says Kelen. "But I've been at this for a while, and I am not really aware of suits that were so frivolous that they were brought just to get money."
On the other hand, Kelen believes that the problem of expert witnesses testifying about ED care who are clearly in it for the money is "pervasive." "This is astoundingly frequent. And I don't see any end to it. It's too lucrative for everybody. It is an amazingly ugly side of our medical / legal system," he says. "Those are people I think should be countersued."
Kelen occasionally does expert witness work, but limits this to four new cases a year. "The money can be quite good, but if you take too many cases, then you may start to lose credibility," he says.
On one occasion while serving as an expert witness for the defense, Kelen realized that the plaintiff's expert was obviously lying. "This guy was so outlandish and so preposterous in what he'd said, that he was just making up stuff as he went along," he says. "Yet he represented himself as an expert. If I could, I'd love to sue expert witnesses whose testimony can be bought."
Kelen says, though, that he isn't sure what grounds there might be to sue an expert witness. One challenge would be proving that their testimony wasn't really their opinion, and that they made a willful misrepresentation of the standard of care solely to hurt the defense.
Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH, says that with regard to expert witnesses, their testimony "is in the nature of opinion. Therefore, it would not subject them to liability for defamation unless they deliberately 'cross a line' in their allegations. I have not seen that, in my experience."
Unscrupulous witnesses tend to be on the plaintiff's side, according to Kelen, although they occasionally work for the defense. "It's pretty ubiquitous, but the only way you know that is if you do any expert work and see how your colleagues operate," says Kelen.
Taking a mix of cases from the plaintiff and defense side can help the expert's credibility. "It's not as though no patient ever gets hurt and deserves an appropriate opinion about it," says Kelen. "It is important to have some balance. Otherwise, you look tremendously biased. The guys who do 90% plaintiff work are obviously just guns for hire, and their opinion counts very little with me."
Plaintiff attorneys approach ED experts "with equal if not more frequency than the defense, but can be triaged very quickly," says Kelen. "Often, they will approach you with a case. If you ask a few questions and they can tell you have trouble in terms of supporting their position, they will not go with you."
Plaintiff lawyers are looking for you to tie together all the four major pillars of malpracticethere was a duty, you breached it, there was harm done, and you were the reason for the harm. "If you waver at all, then they just don't like it," says Kelen. "Contrary to that, the defense seems to have more flexibility in your opinion. The defense is more likely to go with you even if you aren't able to say every single thing they did was right."
At times, for example, defense attorneys still hired Kelen as their witness even though he testified that the standard of care wasn't met by the ED physician, with the argument that this made no difference in the patient's outcome.
Kelen recalls that that one expert witness, a prominent ED physician, was carrying some 40 cases at the time of his deposition. "As he was being deposed, it was clear he couldn't keep track of what case he was on. He just kept repeating that the standard of care was not breached," says Kelen. "To my great surprise, even very highly respected people in our field can turn into guns for hire."
Source
For more information, contact:
Gabor D. Kelen, MD, Director, Department of Emergency Medicine, The Johns Hopkins University, 1830 East Monument Street, Suite 6-100, Baltimore, MD 21287. Phone: (410) 955-8191. E-mail: [email protected].
"There are unscrupulous lawyers, some of whom are very skilled and may hope to settle for just a little bit of money," says Kelen. "But I've been at this for a while, and I am not really aware of suits that were so frivolous that they were brought just to get money."Subscribe Now for Access
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