A SLAPP AGAINST PLAINTIFF'S EXPERT TESTIMONY IN MED MAL CASES

An interesting but troubling hole in our anti-SLAPP/First Amendment jurisprudence has recently been brought to my attention by a number southern California attorneys who represent plaintiffs in medical malpractice cases. Typically, large healthcare provider organizations (HMOs), iner alia, throughout California have binding arbitration agreements in their health care policy/provider agreements with patients/insureds. In most instances, it is the defendant provider that pays for the arbitrators to sit on panels. As a result, many believe their is inherent bias in the arbitration forum. Many on the plaintiff's side of the bar say that the forced arbitration clause is the first assault on plaintiff's due process and petition rights when they have suffered an injury due to medical negligence. I come from a family of physicians but I am also a professional patient myself. While I believe that there are too many frivolous medical malpractice cases, I also believe there are not enough meritorious ones that should be filed or that there are too many meritorious cases where the plaintiff is not adequately compensated. But regardless of what you or I may believe on whether tort reform is needed or not, a sinister affront to the First Amendment petition rights of plaintiff's expert witnesses in medical malpractice arbitrations and lawsuits appears to be taking place right under our noses.

Many lawyers who represent plaintiff's in medical negligence cases have noticed a nefarious pattern and practice of large medical provider/defendants. For example, plaintiff's expert testifies in a medical negligence case. Expert testimony from the defense is also presented. Win or lose, many of these large organizational defendants will then file a letter complaint to the private accreditation board/medical association for the specialty to which the plaintiff's medical expert belongs and makes his livelihood from. Kind of like ABOTA for lawyers - it is a purely private accredication and professional specialty organization with its own standards of achievment and ethics. Many of these private organizations have their own rules for regulating conduct of its members as well as for admission, suspension, public censure, and expulsion from the group. Public discipline or loss of accreditation - let's say to a cardiac surgeon or an eye surgeon - would be devastating to their reputation, career, and livelihood. These complaints are routinely lodged against plaintiff's medical experts only and they seek to have the physician expert who happens belong to one of these prestigious organizations disciplined, suspended, or expelled as the price for daring to provide expert testimony for a plaintiff against a large HMO or medical organization. According to members of plaintiff's med mal bar, many physician specialists who have testified as experts now find themselves defending against disciplinary complaints initiated by letters from these provider groups. This attack on the petition rights of plaintiff's medical experts to provide medical expert witness testimony in a judicial or quasi-judicial forum has had a direct chilling effect on plaintiff's right to bring a medical malpractice suit and obtain competent legal representation. Experts are everything in medical malpractice cases. The key allegation that invariably shows up in these complaint letters to various prestigious private medical organizations is that the Doctor provided an expert opinion that is false, misleading, or deceptive in violation of the organizations rules of ethics for its members. Lawyers know from defamation 101 that there is no such thing as a false opinion. Because these arbitrations in which the experts testify are private proceedings that are often not authorized by law and may not be reviewable by writ of mandate, which is required to put it within the ambit of the litigation privilege and the anti-SLAPP statute under Kibler v. Northern Inyo County Hospital Medical Group (2006) 39 Cal.4th 192. More importantly, the private acceditation organizations for various medical specialities promulgate their own membership and ethics rules and hearing procedures, which are neither authorized by law nor reviewable by writ of mandate. Often these medical assocations are out of state. So the plaintiff's medical expert is now on trial out of state in a purely private forum without the protections of the Anti-SLAPP laws, the litigation privilege, or the First Amendment. Even if the Doctor prevails at the disciplinary hearing, the cost, expense, and risk to the Doctor's career and livelihood chills the Doctor's willingness to testify as an expert again. Hence, a new involuntary conspiracy of silence has arisen.

Our legislature at the state and federal level needs to enact a law that will deter this kind of abuse of disciplinary proceedings against those who testify as expert witnesses. If the Doctor, after prevailing at the administrative hearing, attempts to sue the defendant provider organization for malicious prosecution in court, he will surely be met with a fierce anti-SLAPP motion.

I am no expert in medical malpractice cases, arbitrations, or private disciplinary proceedings. But I do see big hole in the First Amendment/Anti-SLAPP protections afforded doctors who testify in good faith from having to fend off these kinds of disciplinary complaints with private prestigious medical associations just because they testified as an expert on behalf of a med mal plaintiff.

Based on my information and belief, this pattern and practice is systematically being committed against Doctors who testify as experts on behalf of plaintiffs in med mal cases. But even if this practice was just as frequently aimed at defense experts, either way this practice is wholly repugnant to the both the parties' and the witnesses' First Amendment petition rights. Consequently, this gaping hole in our anti-SLAPP/First Amendment jurisprudence is unacceptable and must be plugged up with appropriate state and federal legislation.

Comments appreciated!!!