Can a derm expert witness be arrested for lying on the stand?

Dr. Skin is a nationally known academic researcher. Because of his expertise he is commonly asked for expert testimony in a large number of medical malpractice cases. He recently testified and was asked about his background. He stated that he was a well-known dermatologist who lectures all over the world. This was true.

When asked about his training, he stated that he went to an Ivy League medical school. In fact he went to medical school outside of the United States. After the trial is over, it is determined that he lied about his background. He admits this, but contends that his lies as an expert on the stand had no material impact on the trial. His adversaries disagree and file a lawsuit against him. Soon thereafter he is arrested for perjury. He is in disbelief. Can this happen? In fact, it can happen.

Uncommon but not unprecedented

Such an arrest is not a common headline. But it can happen. Recently, Melvyn Flye, M.D., a St. Louis surgeon, testified in a medical malpractice case involving gallbladder surgery performed in 2010. Media reports noted that Dr. Flye allegedly lied under oath about his own surgical experience, how often he had been sued for malpractice, and the status of his surgical credentials at a St. Louis hospital. He was arrested and subsequently released on $50,000 bond.

Many physician defendants suggest that in their medical malpractice case the physician expert witness lied - and he or she committed perjury. In reality, expert witnesses are generally immune from civil litigation based on their opinions rendered in court. They cannot be sued for malicious prosecution, abuse of process, or defamation.

The reason is simple: In most disputes, there are two sides, and if experts could be sued for their words by the adverse party, there would never be any end to litigation. Because of this, experts can make wild claims on the witness stand with essential civil impunity.

For example, historically experts can testify that the defendant never received a medical degree; is a pedophile; or has been sued 25 times in the past. While each of these claims is factually false, a party often could not find a remedy in civil court against an adverse expert spouting such lies.

Criminal action

That said, if an expert makes factual claims that are demonstrably false, and these fictions are materially relevant to the outcome of a case, action can be taken criminally (alleging perjury). There, the action is propelled by the district attorney. The district attorney would need to be persuaded to take such a case. The bar is high and most such prosecutors take a pass. The few times district attorneys have propelled such cases, they were based on an expert’s credentials - for example, an expert misstating his credentials vis a vis board certification or how many procedures he had performed in the past.

An example was a case where, according to a federal prosecutor, a Florida surgeon lied about regularly performing coronary bypass surgery while presenting himself as an expert witness in medical malpractice cases. The doctor denied the accusation. A federal grand jury indicted Alex Zakharia, M.D., on perjury, mail fraud and wire fraud charges, Detroit U.S. Attorney Stephen J. Murphy said in a news release. Dr. Zakharia, 68, is a cardiovascular surgeon licensed in Florida. Mr. Murphy said the doctor lied about his experience to advertise his services as a medical expert in malpractice cases in 2001 to 2003.

With this in mind, preposterous “opinions” are not considered perjury. Fictional factual claims may be actionable as perjury. It appears Dr. Flye joins the list of “experts” whose alleged puffery about his background, training and experience was exposed.

Dr. Skin is entitled to his opinion. A defendant physician may not be happy about this, but cannot do much about it. However, if Dr. Skin’s testimony is clearly a lie, he can be arrested for perjury.