Doctors and Lawyers: Witness intimidation?

By Pat Milhizer

When mail came from the Florida Medical Association, Dr. John H. Fullerton just thought the group was looking for a new member.

The letter might as well have been burning in his hands.

“I think I even dropped it,” Fullerton said. “It felt like a hot potato. And I remember just being stunned and shocked and then just ­furious.”

The letter was a blistering complaint from three Florida doctors who were defendants in a 2004 medical malpractice case in which Fullerton testified as an expert for the patient. The letter said that Fullerton aided a frivolous lawsuit by promoting unsound theories just to make a buck.

Fullerton responded with a defamation law­suit against the association and the doctors, and the case is pending.

These days, Fullerton believes, doctors face heightened pressure from private medical groups to avoid moonlighting as expert witnesses for plaintiffs in malpractice cases.

“There were times in the ‘50, ’60s, and beyond where that white coat of silence was talked about, where it was hard to get doctors to testify against other doctors,” said Fullerton, who practices medicine in San Francisco and is also licensed in Florida. “With stuff like this going on, it’s a resurgence of that kind of activity.”

And it’s not limited to water-cooler talk anymore.

Some medical associations have issued policies on the standards for courtroom experts and the potential for the peer review of one’s testimony. Plaintiff’s attorneys call it a form of witness intimidation.

“They act like they’re looking at testimony, but all they’re doing is trying to have the doctor never testify again,” said Joseph W. Balesteri of Power, Rogers & Smith. “It’s become a great way to keep very well-qualified experts from wanting to testify.

“It’s a real thing that a lot of people don’t know about,” he said. “And it’s becoming much more prevalent.”

Here in Illinois, the tension is only escalating between doctors and plaintiff’s lawyers, who are still smarting from the General Assembly’s decision in 2005 to cap non-economic damages in medical malpractice cases.

The debate

On a recent day at the office, Stephen D. Phillips fired off an e-mail to his colleagues at the Illinois Trial Lawyers Association.

Phillips, who co-chairs the group’s Medical Negligence Committee, wanted to hear their stories about problems they’ve had when trying to secure doctors to testify.

Phillips already has a few stories of his own.

In one case, he found a doctor willing to testify on behalf of a plaintiff who ended up with a severe nerve injury after a standard knee procedure. The doctor was the “all-star of knee surgeries” and had invented a form of the procedure, Phillips said.

“And he calls me a month before the deposition saying he can’t do it. I had the guy. And then I had to scramble to get another expert,” Phillips said.

In another instance that happened after a trial, a hospital president called a physician into his office and brandished copies of his trial testimony and deposition testimony while telling the doctor, “We don’t testify against other doctors around here,” Phillips said.

“It’s a prime example of the length that certain members of the medical profession will go to continue cloaking the truth and impeding the courthouse doors for victims of medical malpractice,” he said.

For their part, two prominent medical asso­ciations provided their policies on expert testimony.

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