South Carolina Supreme Court halts out-of-state expert witness rule

South Carolina's Supreme Court has stopped the state's medical board from enforcing a new law that requires out-of-state physicians to obtain a license to serve as expert witnesses.

In its Aug. 24 order, the court said the measure "has the potential to substantially impair the orderly administration of justice." The court said the law casts doubt on a physician's ability to offer testimony if the physician lives outside the state, and it fails to address certain situations such as a physician who at one time was licensed in South Carolina but has since moved to another state.

In its order, the Supreme Court said it expects state legislators to review the law and consider what the court said. The Legislature reconvenes in January.

The South Carolina Board of Medical Examiners said the law is intended to make physicians accountable for what they say as expert witnesses, not discourage them from appearing as experts.

"The law was not designed to restrict a judge's traditional responsibility for determining who should be qualified to testify as an expert in a judicial proceeding. It simply requires that any physician who does so hold a valid South Carolina license," board Vice President Louis E. Costa II, MD, DMD, said in a statement following the court's order. "In this way, the law assures that doctors can be held accountable for what they testify to under oath when it constitutes false, deceptive or misleading testimony. That's what has been missing in the past."

Jim Knight, spokesman for the South Carolina medical board, said the board meets again in November and might address the issue then.

South Carolina overhauled its medical practice act in June, and the new law required out-of-state physicians to obtain a license before they could act as expert witnesses. American Medical Association policy states that testimony a physician gives as an expert witness is considered the practice of medicine.

The South Carolina law had been criticized after some court cases were stalled. Columbia, S.C., attorney Charles Henshaw said two medical liability cases in August were delayed because experts did not know that they needed the license.

"It really caught a lot of people off guard," said Henshaw, former president of the South Carolina Trial Lawyers Assn. "Clearly, all the lawyers on either side who have to work with experts on their cases are relieved that this [court order] has happened."