Putting It on the Record

There is no ducking the question that recurring readers of this blog must already be asking: Does Nordberg read any newspapers, other than the New York Times?

Well, yes, I do. But material from the NYT has been seeming especially bloggable.

Today, for instance, the Times has a longish piece on medical societies that discipline member physicians for giving expert testimony that the societies consider improper. Predictably enough, plaintiffs’ attorneys are seeing this as intimidation, whereas the medical societies are seeing it as peer review.

This makes me wonder whether juries might have the same ambivalence.

So far, the primary battle has been over whether the medical societies should be allowed to do this sort of thing at all. That battle has been waged partly via litigation, with the medical societies generally prevailing. See, e.g., Austin v. American Ass’n of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001), cert. denied, 534 U.S. 1078 (2002).

But perhaps the battle could also be joined in the underlying trials. If we live in a country where doctors are subject to professional discipline for testifying in a disfavored manner, and if it is doctors who testify for malpractice plaintiffs who are by far the most frequent targets in disciplinary proceedings, then perhaps the trier of fact should know this. Of course, the jury will never find out, if no physician can be found who will risk testifying for a malpractice plaintiff in the first place. But in a malpractice trial where both sides have indeed managed to find experts, the institutional backdrop against which their testimony is offered seems germane to its credibility and reliability.

Q: So, Doctor Smith, what information did you consider in forming your opinion?

A: Among other things, I considered the propensity of the American College of Neurosurgeons to impose professional sanctions on physicians who testify for malpractice plaintiffs, but only very rarely on physicians who testify for malpractice defendants.