Doctor may be forced to be expert witness

A case before the Wisconsin Supreme Court has physicians there worried that they might lose some of their freedom to choose whether they will serve as expert witnesses in medical malpractice trials.

Justices will decide this year whether there are "compelling circumstances" to force a woman's new gynecologist to provide expert witness testimony in a case alleging medical malpractice against her former obstetrician-gynecologist.

The Wisconsin Medical Society and the American Medical Association argue that an appellate court was wrong to compel Charles H. Koh, MD, to serve as an expert in the case.

The court said Dr. Koh was required to testify because the plaintiff, Sinora Glenn, had missed the deadline for naming an expert witness and that without expert witness testimony, the case could be dismissed.

The medical associations, which filed a friend-of-the-court brief, say setting the standard so low for forcing an expert witness to testify strips doctors and other professionals of the right to decide when they provide their time and knowledge to the court.

"We are in America, and normally we don't make people do something they don't want to do," said Mark L. Adams, WMS general counsel. "The Wisconsin Medical Society encourages physicians to testify but is opposed to compelled testimony."

As expert witnesses, doctors and other professionals are required to draw on their years of training and experience to draw conclusions, said Michael P. Russart, the Milwaukee attorney representing the ob-gyn sued in the case, Michael T. Plante, MD. The situation cannot be compared, he said, to that of fact witnesses who can be compelled to testify because they observed something that makes them uniquely necessary to a trial.

"Experts have an intellectual property right and shouldn't be compelled to have to give that up," Russart said. "They should have the right to contract."

Glenn's attorney, John K. Brendel, said this case, Glenn v. Plante, does have the circumstances that would require the court to compel Dr. Koh to testify. Brendel argues that Dr. Koh does have information that is unique to the case because he treated Glenn after Dr. Plante performed a right oophorectomy and a hysterectomy. According to court records, Dr. Koh sent a letter to the court saying that he was reluctant to testify but that he believed aspects of Dr. Plante's treatment were inappropriate.

"If you were on a jury, wouldn't you rather hear from a patient's own physician?" Brendel said.

Brendel acknowledges that the deadline was missed, but said it was not because of carelessness. Instead, he said, it was caused by complicated court scheduling that included changes in judges. When the trial judge refused to give them more time to find an expert, they said it made sense to name Dr. Koh.

Defense argument called reasonable

In a split opinion, a Wisconsin appellate court noted that Dr. Plante makes a reasonable argument about the missed deadline.

"He contends that 'Dr. Koh's subsequent treatment of Ms. Glenn makes him no more and no less qualified than any other gynecologist to give an expert opinion about standard of care and causation regarding the treatment by a different physician,' " the Court of Appeals of Wisconsin said in its 2-1 opinion.

Dr. Plante also argued, "but for the Glenns' counsel's failure to comply with the scheduling order, Ms. Glenn could have located other experts who could have testified instead of Dr. Koh." Most critically, Dr. Plante maintains, courts should not allow a party's noncompliance with a scheduling order to set the stage for the client's "compelling circumstance."

The court said Dr. Plante's point could prevail depending on the circumstances of a case. But, they said, given the specifics in this case, there was enough reason to compel Dr. Koh to testify as an expert witness.

"Dismissal is a drastic remedy," the court said.

Precedent setting

The Wisconsin Supreme Court's decision will set a precedent for how future cases are handled.

If Dr. Koh isn't required to testify, Brendel said it would make it difficult for plaintiffs in medical malpractice or any other professional negligence case to line up witnesses who might be able to testify to what they saw. Under current case law in Wisconsin, plaintiffs' attorneys already have a difficult time finding physicians to testify as experts, he said.

"If a plumber's work ruined your basement, wouldn't you want to be able to have the person who fixed it testify about what they saw?" Brendel said. "I am pro-medical field, but for them to say they are so special that they can't be challenged is not good for the state of Wisconsin."

Physicians disagree that the facts in this case support the need to compel a doctor to testify and argue that a bad precedent will be set if the appellate court decision is allowed to stand and Dr. Koh is made to testify.

"Compelling testimony against an expert's wishes, in essence, deprives that expert of control over his or her professional pursuits," the AMA and WMS said in their argument to the court. "In no other part of professional life are professionals generally required to forgo their freedom of choice."