In Michigan, a troubling case involving medical expert testimony

michblogIn protecting its citizens, Michigan already is taking a deserved drubbing for its shameful government  negligence in allowing the lead pollution of Flint‘s drinking water. Officials now need to get their act together to stop a different kind of public policy embarrassment: Expert medical witnesses who abandon any pretext of objectivity and instead work hard to help insurance companies cheat injured people.

This legal controversy is developing in the Detroit suburbs.  It ought to deeply trouble anyone concerned with the First Amendment, and the civil justice system and its fair application of the law in cases of vulnerable litigants who have suffered medical injuries.

On its face, this looks like a doctor versus lawyer dispute. It’s more than that.

In civil lawsuits in which an injured person is suing the person or company that caused the harm, courts in Michigan and across the country allow defendants or their insurance companies to require the injured person to submit to an “independent medical examination.”

That sounds only fair, doesn’t it? But if you have spent any time in court, as I have, you quickly learn that certain of these so-called independent medical examiners are not independent at all, and lawyers and their injured clients need to prepare and watch out for them.

In the Michigan case, a psychiatrist did an “independent” medical exam on a man who suffered a brain injury in an accident. She wrote a report claiming that the injured man was much better; in fact, she said, he had told her he was “improving.”

The man’s lawyer had taken the trouble to record the doctor’s examination (over the defense lawyer’s objection, and only after the court okayed the recording), and he proved at trial that the patient had actually told the doctor, “I don’t think I’m improving.” That was one of many sharp differences he showed between what the doctor claimed the injured man had told her versus what he actually did say.

So after he won the trial, the lawyer wrote a blog post questioning whether the doctor had perjured herself in her testimony. A strong accusation, but lawyer Steven Gursten presented the recording of the interview and compared it to her report, and asked readers to judge for themselves.

Here’s where it gets problematic: The doctor not only disagreed, she also got mad enough to file a formal complaint against the lawyer with the state’s legal licensing board.

She also happens to sit as a member of that board.

She wants the lawyer investigated as to his fitness to hold his license. She demands that the board act to get the lawyer to pull down his blog post, which she says misrepresents the facts and defames her.

The lawyer isn’t backing down. He’s got a lot at risk.

What’s at stake

So, too, does the state of Michigan and the civil justice system. Pop media don’t provide 100% accurate portrayals. But there are all too many painful depictions in the movies and on TV of hired-gun expert witnesses, shading the truth and harming ordinary folk in court cases. For those with injuries serious enough to pursue claims in a lawsuit, the experience in court can be downright scary, and hard enough already without having to worry about the independence and impartiality of some of the system’s key players. This particular doctor had become so notorious in Michigan before the current kerfuffle that plaintiff lawyers conducted seminars on how to deal with her in court.

I’m also concerned that the part of the government that licenses lawyers could get itself involved in censoring them. This isn’t just about an attorney’s First Amendment rights. It’s about all of our rights as Americans to know, clearly and robustly, what happens in the courts and with the proper administration of the law. As a former journalist and an attorney, I know that the complaining psychiatrist would bear a heavy burden if, instead of seeking to yank the lawyer’s license, she had pursued a defamation-libel case against him and had to ask a judge to pull down his blog post. Courts, rightly, set a sky-high First Amendment-based bar when public officials and public figures  seek to curtail public information about the performance of our government, especially our courts.

If you look at the lawyer’s blog post, it is impressive in its documentation of his assertions of dubious if not false testimony by an expert witness.  Lawyers can rip apart witness inconsistency or falsehood in cross-examination. Judges can assist in bringing forth legally salient facts, in excluding bad evidence or testimony, and in taking steps against witnesses whose credibility falls so far as to make them–and the civil justice system–disreputable.

As for this licensing board, its members should know that attention is growing about this case. Like it or not, they now are subject to judgment in the harsh court of public opinion, where, candidly, they start in the hole: Can the public trust the board to render an impartial judgment on a complaint by one its own members? I hope this board, immediately, gets the complainant to recuse herself. Similar panels have, in my opinion, acted to advance the profession and buttress public confidence. They have rejected law licenses for a noteworthy plagiarist but have allowed them for meritorious candidates who were undocumented immigrants. At the same time, officers of the court also have turned a blind eye to unfolding wrongs in the system, notably in a developing scandal about snitches as witnesses in criminal cases in Orange County, California.

For injured folks like the kind my law firm represent, this case is an eye-opener about how one-sided the process can be, and how “independent” medical examinations are anything but independent much of the time. The lesson for any injury victim must be, if you find yourself in the clutches of a biased, non-objective medical examiner, to make sure that everything said is documented and is 100% accurate and truthful.  Here’s some advice we give our clients about how to approach the “independent medical examination.” Only rigorous preparation and complete accuracy will defeat these biased doctors.

Oh, and a good video or audio recording of the proceedings helps too.

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