July 26, 2004

Anonymous expert accusers

On those anonymous certifying doctors in Illinois (see "Anonymous Accusers (Of the Expert Kind), Jul. 23), it seems to me we have to place these certifications in context. Contextual element number one: Medical malpractice defendants already enjoy a protection afforded to few other litigants, in states where some licensed professional must sign off on the claim before it may even be filed. Contextual element number two: The med-mal plaintiff (I assume) cannot rely on anonymous sources for any evidentiary purpose, but rather must produce identified experts to survive summary judgment and proceed to trial. Overall, such certification regimes can be regarded as the state's delegation of a quasi-judicial screening function to medical professionals it has chosen to license, without any intent that the screening function displace the litigation process in which potentially legitimate claims are evaluated on the merits. (There would probably be Seventh Amendment issues, from both the plaintiffs' and defendants' perspectives, if such a displacement were intended.) If the doctors are being enlisted to offer this service on the state judicial system's behalf, it seems reasonable to protect them from attack, whether that attack be from aggrieved defendants or from disappointed plaintiffs who do not obtain the certification they requested. Anonymity may not be a necessary or sufficient device for affording such protection, but it's one way to go about it. Absolute or qualified legislative immunity from suit and/or disciplinary action could be another. -- Peter Nordberg, Daubert on the Web

Well, there's certainly much to be said for putting the case-screening function in the hands of impartial medics employed in a quasi-judicial capacity. For that to happen, one would want to make sure the screening doctors were 1) selected by and 2) compensated by the court itself rather than by the contending parties. Were that the case, we might consider extending to those doctors the near-freedom from suit that we accord to judges, special masters, etc. However, unless I am much mistaken, the current rules in Illinois are quite different: they instead allow a lawyer to shop around for a doctor who will certify whatever the lawyer wishes to have certified, and the compliant M.D. who agrees to serve as a rubber stamp can pocket a fee from the lawyer while fearing neither professional disgrace nor specifically legal consequences.

Even were we to move to a system of screening by truly neutral court-selected doctors, I very much doubt that we would want to accord those doctors anonymity: the values of courtroom transparency and accountability would be too much at risk. As for the danger of retaliation, the law's usual reaction -- in the case, for example, of companies which might fear revealing the identity of personnel decisionmakers in employment suits because of the risk that demonstrators would show up at those managers' homes at midnight -- would be to say that there are already laws on the books addressing the dangers of improper harassment, and if those laws are too weak they should be strengthened directly rather than keeping litigants ignorant of the identities of their key adversaries. -- W.O.

Posted by Walter Olson at July 26, 2004 12:33 AM

The context of certifications to which Peter refers may also be viewed in a different light: the "certifications" provide a false sense of "protection" to defendant physicians by "assuring" that a proposed malpractice case has merit. If the defendant physician questions the validity or the premise of the lawsuit, the plaintiff's attorney can claim the case has merit because it was deemed non-frivolous by another physician. If the defendant physician tries to exert due process rights to question the certifying physician, the courts hide the certifying physician's identity.
Suppose a physician is sued for not performing a pregnancy test in a male patient with abdominal pain. The case is hopefully then dismissed. The defendant physician tries to bring a countersuit against the plaintiff's firm for malicious prosecution, but the counterclaim is dismissed because the attorneys were justified in relying upon the opinion of their retained expert. The defendant physician then tries to name the retained expert as providing a negligent opinion and the courts hide the identity of the retained expert, so the case must be dropped. The defendant physician suffers emotional turmoil, and insurance rates go up after being named as a defendant in a lawsuit. What recourse does the former defendant physician have? I'd like to hear suggestions that do not involve violation of any criminal statutes.
In essence, the "screening" process becomes one in which plaintiffs counsel who know the right "experts" can spend a quick $500 to obtain an opinion validating a frivolous lawsuit. The only true protection is to the plaintiff's attorney who, by going through this "certification" has now insulated him/herself from a malicious prosecution lawsuit. Isn't it interesting that out of five states with "anonymous certifications," three are considered by the AMA to be malpractice crisis states and one is on the endangered list?
While it is true that experts must be disclosed to go to trial, cases are often far into discovery before the plaintiff's attorney scrambles for an expert who will give a favorable opinion. The identity is then disclosed just prior to court deadlines. The testifying expert is often not the same expert who certified the case.
Anonymity is the only means left to perpetuate this cycle since even if an expert were afforded immunity from suit or disciplinary action, that expert could still be exposed to the medical community for providing unjustified opinions.
Court-appointed experts are one way to attempt to maintain neutrality within the system, but even then there will always be biased opinions without the benefit of review. A peer-review board whose opinions are admissible as evidence at trial is another option. Providing one court-appointed expert absolute power to determine the outcome of a multimillion dollar case might have other unintended consequences. -- An Illinois attorney
P.S. Thanks for bringing this issue to light and for the meaningful discussions about it.

Posted by: Illinois Attorney at August 6, 2004 03:10 PM