When it comes to explaining why you treated a patient the way you did, there’s one true expert: You. So if you get sued, providing testimony as an expert witness in your own defense might be appropriate.
Now, imagine if you did so, and your opponents in the suit had the right to see every document that was supposed to be between you and your attorney.
Since even people who’ve never opened a law book know about “attorney-client privilege,” you might think that doesn’t sound right.
But a 2016 Texas trial court decision in City of Dickinson v. Texas Windstorm Insurance Association (TWIA) threw into question whether physicians and others acting as their own expert witnesses could maintain that privilege.
Now, the Texas Medical Association is asking the Texas Supreme Court to make sure physicians can. TMA signed on to a friend-of-the-court brief to support TWIA, which was asked to produce documents between it and an employee who served as an expert witness. TWIA resisted and won in an appeals court decision on the issue, which now sits before the Supreme Court.
The trial court had ordered TWIA to turn over the private papers, and reinstating such a decision carries “severe repercussions throughout Texas law,” TMA, the Texas Alliance for Patient Access (TAPA), Texas Hospital Association (THA), and Texas Osteopathic Medical Association (TOMA) warn in their brief. The lower court ruling would make physicians and other Texas professionals choose between testifying for themselves and “giving up the right to freely and confidentially consult” with their attorney, or not testify in their own defense to keep that confidentiality.
“No one should have to make such a choice,” medicine wrote.
The confidentiality issue
The City of Dickinson sued TWIA over claims for property damage caused by Hurricane Ike in 2008. In 2016, after TWIA submitted written expert testimony from Paul Strickland, a senior claims examiner at the association, the city sought “all documents Strickland reviewed or received in preparing the affidavit that contained his expert opinions,” according to court documents.
TWIA refused, but a trial court ordered it to produce the documents within three days, or else lose Mr. Strickland’s expert testimony. The 14th Court of Appeals reversed the ruling, saying the attorney-client privilege protects “confidential communications between the client or the ‘client’s representative’ and counsel” for providing legal services. TWIA had designated Mr. Strickland as a corporate representative, which the appeals court said qualified him as a “client representative.” So judges decided that the documents were protected attorney-client communications.
Dickinson appealed to the Supreme Court. In court papers the city says the appellate decision allows an attorney to “impenetrably cloak, with the attorney-client privilege, documents which the attorney provided to and prepared for a testifying expert in anticipation of the expert’s testimony, as long as the expert is an employee of the attorney’s client.”
Dickinson’s filing called the appeals court’s decision “dangerous” and said it “carries with it breathtaking potential for collusion between parties, attorneys, and experts.”
TWIA, however, fired back with a response that invoked physicians and other professionals.
“Whether they are doctors, lawyers, accountants, engineers or even insurance adjusters, civil defendants sued for conduct about which they have specialized knowledge should be allowed to testify and express opinions based on their specialized knowledge without waiving their attorney-client and work product privileges,” TWIA wrote. “This is no less true for corporate defendants than it is for individuals, including entities like hospitals, law firms, engineering companies, construction contractors, product manufacturers, and even insurance companies.”
TMA weighs in
In their friend-of-the-court brief, TMA, TAPA, THA, and TOMA explain it’s essential for physicians to be able to testify as expert witnesses in their own defense. With the stigma of lawsuits potentially harming doctors’ reputation and practice, they want to speak up to defend themselves, the brief explains.
“Only the physician will know his or her thought processes behind many of the decisions that are the focus of a health care liability claim,” the brief says. “A rationale might include why he or she ordered or provided a course of treatment and did not choose other potential courses of treatment claimed to constitute the applicable standard of care. Additional factors might include: the decision to treat or not to treat; prescribe or not to prescribe a particular medicine; advise the patient on a particular means of treatment; or make any number of other professional judgments during the course of a physician-patient relationship.”
If there’s an exception to attorney-client privilege for experts testifying in their own defense, the brief explains, plaintiffs in a lawsuit would designate their opponent in a case “as a testifying expert witness for the purpose, perhaps the sole purpose, of obtaining otherwise privileged attorney-client communications.” Testifying as your own expert becomes “difficult, if not impossible” if that confidentiality doesn’t exist, medicine added. If physicians choose to serve as an expert witness in their own defense, anything they say, write, share, or strategize with their attorney would have to be shared with the opposing side, namely the ones filing suit.
The Supreme Court heard oral arguments in the case Oct. 9 and at press time was still deliberating.
Tex Med. 2018;114(12):44-45
December 2018 Texas Medicine Contents
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