Expert Witness and Perjury

“Dr Derm” has been named as an expert witnessin a medical malpractice case. He testifies against a dermatologist whom he knows professionally but with whom he has no personal relationship. He has competed with this fellow physician for years and although he knows his testimony is false, the jury and judge will have no way of perceiving the falseness of his testimony. Because of Dr Derm’s testimony, the defendant dermatologist loses the malpractice case. The defendant is furious. He discusses the case with 10 other dermatologists who all agree that Dr Derm lied during his expert testimony. The defendant dermatologist seeks counsel as to his legal options in a cause of action against Dr Derm. He is advised that he could attempt to bring a civil case against Dr Derm. However, such a suit would cost thousands of dollars and be tied up in the courts for years.

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The defendant dermatologist decides to file a complaint against Dr Derm with his state board of medical examiners. Will the board intervene? Can it censure Dr Derm for perjury if a civil court has not decided in such a manner?

The case of The Medical License of Dr Reuben Setliff, MD¹ shows that significant liability can be associated with providing perjured expert witness testimony. In that case, Setliff testified for the plaintiff in a medical malpractice action against Reitz. During a sworn deposition, prior to trial, Setliff testified about “a professional review of his practice.” He acknowledged that his practice had been reviewed by the state of Wyoming. As a result, he was required to obtain a second opinion before performing certain surgical procedures. Setliff refused to characterize this as a “restriction” onhis privileges.

At trial, Setliff, based on advice from counsel, again denied that an investigation resulted from a complaint. Subsequent to trial, a complaint was filed against Setliff with the Wyoming State Board of Medical Examiners. After an investigation, the board found that Setliff had made false statements. The board ruled that Setliff’s testimony was “unbecoming of a person licensed to practice medicine.” The board revoked his license for6 months.

Setliff appealed this decision. The court noted that a physician’s license could not be revoked unless his misconduct is proven by clear and convincing evidence. A high standard of proof was required before revoking a license because of the importance of the interest involved, ie, a professional career. However, the court noted that because it is impossible to catalog each and every type of misconduct, the board is given broad terms under which to analyze each case.

However, in finding for Setliff, the court noted that Setliff acknowledged that an investigation took place. Setliff believed his testimony was accurate and made no attempt to conceal the review. The court also said that although reliance on an attorney’s advice is not always an outright defense to wrongful actions, such reliance might be used to support aperson’s testimony.

Ultimately, the court said Setliff appeared to be evasive by characterizing the board investigation as a review and characterizing the result as a second-opinion requirement and not a restriction on privileges. These characteristics could be used to attack Setliff’s credibility but did not prove by clear and convincing evidence that Setliff had testified falsely. It should be noted that in the decision the dissenting judge respectfully stated: “Dr Setliff is a liar. He lied to the court. He lied tothe jury.”

The implications of the Setliff case are quite clear. Although the court found in favor of Setliff, they might not have found in favor of Dr Derm. Expert witnesses are given significant leeway in their court testimony. However, if after trial it is determined that an expert witness has blatantly lied, the local state board of medical examiners may pursue the matter and provide sanctions on the license of the falsely testifying physician.

Reference

1. In Re the Medical License of Dr Reuben Setliff, MD,48 SD, L REV 388, 396 (2003).