Wisconsin doctors not forced to be expert witnesses

Wisconsin physicians don't have to worry about lawyers dragging them into court as expert witnesses unless a doctor truly has information that no other expert can provide.

The Wisconsin Supreme Court on March 24 ruled that a lawyer who misses a deadline to name an expert witness doesn't create the compelling circumstances needed to force a doctor to testify.

Although the deadline schedule in the case, Glenn v. Plante, became complicated as it bounced between judges, it still was not enough to require that the patient's treating physician testify as an expert as to whether another physician who treated the patient met the standard of care, the court said.

"It gives very clear direction," said Mark L. Adams, Wisconsin Medical Society general counsel. "It eliminates all questions the trial courts and appeals courts may have had."

The ruling overturns a lower court decision that would have forced a woman's new obstetrician-gynecologist, Charles H. Koh, MD, to serve as an expert witness in a medical malpractice lawsuit filed against her former obstetrician-gynecologist.

It is a victory for the WMS and the American Medical Association/State Medical Societies Litigation Center, which jointly filed a friend-of-the court brief in the case. The two argued that setting such a low standard for when expert witnesses could be forced to testify would have stripped doctors and other professionals of the right to decide whether they would provide their time and knowledge to the court.

A 1999 Wisconsin Supreme Court case outlined three requirements before someone can be made to serve as an expert witness: compelling circumstances, reasonable payment and no requirement for the expert to do additional preparation to give the testimony.

This newest ruling upholds that.

"The court maintained the privilege and didn't tinker with it," said Michael P. Russart, the attorney representing Michael T. Plante, MD, the ob-gyn sued by patient Sinora Glenn.

But the supreme court did say a court can require a treating physician to testify regarding his or her observations relating to the care his or her patient received.

"Such compulsion is considerably different than forcing a physicians to testify as to the standard of care and treatment provided by another physician," the court said.

"As noted by [Dr.] Koh in his letter, forcing a physician to serve as the lead expert witness in a medical malpractice action against a fellow local physician would be, at the very least, uncomfortable for such expert."