Medical malpractice reform, part of a larger “tort reform” effort, remains a hotly debated issue as health care continues to take front and center. Various reforms have been offered and continue to be debated. One such tort reform measure, which has gone under the radar while receiving steady traction, has been the creation of medical societies with increased “peer review” authority to sanction what it deems to be “improper” or “unethical” medical testimony.
Medical society peer review boards are already in use in the realm of medical expert testimony. Such peer review boards, however, are not full proof, as Chicago injury lawyer Matthew Passen explains in his article, “Courts Address Medical Societies’ Peer Review Authority: Professional Self-Regulation or Witness Intimidation?”, which was published in the Chicago Bar Association’s “CBA Record” publication.
As Mr. Passen points out, medical peer review boards serve a purpose. In the context of medical malpractice suits, medical peer review boards “regulate and sanction improper medical expert testimony.” Many medical societies, such as the American Association of Neurological Surgeons (AANS), the American College of Surgeons, the North American Spine Society, have established medical peer review boards. Weeding out improper medical expert testimony is done through a formal complaint process whereby a member files a complaint against a physician believed to have violated expert testimony guidelines. If the complaint is determined to have merit, the offending physician may be suspended or expelled from the medical society, and may also be reported to the National Practitioner Database.
However, Mr. Passen raises an important issue concerning the potential for medical societies’ peer review abuse: Whether or not medical experts have legal recourse “when medical societies misuse their peer review authority to intimidate expert witnesses from testifying against their peers.” Two cases, Fullerton v. Fla. Med. Ass’n and Bundren v. Parriott, suggest that “medical societies do not possess blanket immunity to engage in expert witness intimidation.” In each case, a complaint criticizing the expert testimony was filed against the testifying physician, who in return filed a complaint against a medical society. In each case, the court ruled that under the Health Care Quality Improvement Act of 1986, neither medical society was immune from damages.
As more medical societies continue to expand their peer review authority to sanction what it believe to be “improper” medical testimony, those doctors who are victims of witness intimidation must have legal recourse against the medical society, as well as the complaining doctors. Without such recourse, doctors will be even less inclined to testify on behalf of plaintiffs in medical malpractice cases. Peer review boards may serve a valid check on improper medical expert testimony, but such power, if left unchecked, may cause more harm than good for doctors and patients alike. To speak with Mr. Passen, or another Chicago personal injury attorney at Passen & Powell, call us at (312) 527-4500 for a free consultation.