Liability of the Expert Neurologist

The June In Practice column, Want to Boost the Bottom Line? Weigh the Risks Carefully (page 6) provides a timely warning to neurologists regarding the perils of performing medical record reviews, independent medical examinations, and expert witness services. Drs. Mark Hallett and Michael Weintraub provide an excellent overview of potential administrative penalties awaiting the errant neurology expert, including discipline by the professional society and medical board actions that may culminate in license revocation.

Neurologists must also be cognizant of the expanding civil liability and criminal prosecution surrounding expert activities. In the past, partisan experts flourished behind the common law expert witness immunity shield. Today, the pendulum is swinging back toward accountability - the majority of states have carved exceptions out of the traditional immunity law in order to hold experts liable for professional negligence.

Several legal authorities suggest this may help stem the proliferation of negligent experts. Friendly lawsuits - suits against experts by the party that retained them - are increasing, and courts have upheld lawsuits against opposing and independent experts. Even if immunity is provided, it does not protect against non-testimonial activity - involving a literature search and discovery of facts, for example. Nor does it protect the expert from criminal prosecution for improper testimony or misrepresentation of credentials.

The expert may also be liable for defamatory communications, and negligent and intentional spoliation of evidence. Remember that malpractice insurance policies may not cover these lucrative expert services without a special rider.

The standard of care for expert services varies with the particular facts of each case, but the following guidelines are applicable to all circumstances:

1. Fulfill the AAN qualifications before accepting a case.

2. Review all relevant medical information in the case.

3. Review the standard of care for the time of service.

4. Perform adequate discovery of facts.

5. Review and understand the relevant literature.

6. Avoid losing or destroying any evidence.

7. Properly assemble and present the case.

8. Provide accurate, impartial, and truthful testimony.

9. Avoid conflicts of interest.

10. Do not discuss the case outside the course of litigation.

11. Compensation must be reasonable, not contingent on outcome.

Lastly, it is important to remember that all deposition and trial testimony constitutes a permanent public record, which may be accessed any time from national repositories.

James C. Johnston, MD, JD

Consultant Neurologist and Attorney at Law, Medical Director, Neurology Associates, P.A. San Antonio, TX