The Expert Witness - No Place to Hide

This Letter To The Editor, Published In Neurology Today, Praises "Invaluable Advice" on Forensic Neurology

Link to original letter.

Your Legal-Ease article, The Trials of Providing Expert Witness Testimony: What You Need to Know (Sept. 3), provides invaluable advice to the neurologist considering forensic opportunities. It is imperative, as Drs. Richard Beresford and Daniel Larriviere point out, to provide truthful, evidence-based opinions supported by the available facts of the case.

Donna Vanderpool, JD, the manager of The Neurologists' Program (TNP), the only medical malpractice insurance program designed specifically for neurologists, describes some of the potential risks associated with expert witness testimony including civil and criminal liability as well as disciplinary actions by medical boards or professional associations. These risks raise two additional points for the expert neurologist to consider. First, civil actions alleging professional negligence seem to be increasingly prevalent. This is because many if not most jurisdictions have carved out exceptions to the traditional common law immunity for expert testimony, opening the door for friendly expert witness suits (suits by the retaining party) as well as suits by the opposing party. Even the independent expert may face litigation for testimonial and non-testimonial related activities (such as discovery of facts and literature research).

Additional civil liability includes claims for defamatory communications and negligent or intentional spoliation of evidence - the withholding, alteration, or destruction of evidence relevant to a legal proceeding. Hopefully, the partisan expert will face a continuing trend of increased accountability. Second, it is commonplace for legal research sites as well as plaintiff and defense organizations, and more recently certain medical associations, to maintain a repository of deposition and trial testimony that can be accessed at any time. This is a powerful tool, and we should encourage the AAN to undertake a similar endeavor - eventually, it would allow us to uncover the errant neurologist, even when he or she is testifying from the backwater courts of east Texas or similar jurisdictions notorious for ignoring or sidestepping the rules.

James C. Johnston, MD, JD
Seattle, WA

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* Due to state insurance regulations, the AAN discount is not available in Oregon.

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