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In my last post, I discussed the proposed State Senate Bill in Utah which would, among other things, subject out-of-state medical experts to disciplinary proceedings for submitting false testimony or testimony lacking a scientific basis. As with everything else, if that law and its impact apply equally to both plaintiffs’ and defendants’ experts, it would be a good thing. The problem is – that will never happen. It is not intended to happen. It is intended to intimidate out-of-state experts from testifying in Utah.

In the overwhelming majority of venues, an in-state medical doctor will not testify against another in-state doctor being sued. Trial attorneys refer to this as the “conspiracy of silence.” A case one of my partners tried several years ago presents a good illustration of the concept. He filed a medical negligence case against a local general surgeon here in Mobile, Alabama. He sent a separate letter to each general surgeon in Mobile and Baldwin Counties – our greater metropolitan area – requesting that they review our client’s medical records and, if they found negligence on the doctor’s part, to testify. Most of them did not even respond. Of those who responded, several went out of their way to say, in essence, “how dare you,” without addressing the merits. One or two politely said no, but did offer to testify against out-of-state doctors. The trial court refused to allow evidence of the “conspiracy of silence” and our Supreme Court affirmed that holding.

At our firm, we buy malpractice coverage for a reason. If one of us falls below the standard of care in representing a client and an injury results, the client should be compensated. I would not want a friend of mine to testify as an expert against me, but I certainly could not hold it against another Alabama lawyer for doing so. Doctors are not any different. It is a shame that this issue has become so polarized that it is next to impossible to even engage in polite debate about it.

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