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