Lawsuit challenges state licenses for expert witnesses

South Carolina's medical board plans to fight to uphold the requirement.

By Damon Adams — Posted Oct. 2, 2006

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Three lawyers in September filed a lawsuit asking the South Carolina Supreme Court to declare unconstitutional a law that requires an out-of-state physician to get a license to serve as an expert witness.

They sued the South Carolina Board of Medical Examiners on behalf of 36 people who are part of medical liability cases or other litigation involving medical experts. The lawsuit claims the license requirement violates state and federal constitutional guarantees of equal protection, due process and free speech.

The petition asks the court to permanently stop the medical board from requiring a physician to obtain a license to be an expert witness. In August, the court said the law "has the potential to substantially impair the orderly administration of justice" and temporarily halted enforcement.

"We assert and believe that the act is unconstitutional," said Charles Henshaw Jr., one of the attorneys who filed the lawsuit. "It's just extremely important that you can present evidence in court and you don't want to have a witness who's worried about some executive agency looking over their shoulder."

Medical board Vice President Louis E. Costa II, MD, DMD, said the executive committee decided the board would fight the litigation. "We are going to argue that we do have the right to regulate expert testimony."

In June, South Carolina overhauled its medical practice act, and the new law required out-of-state physicians to obtain a license before they could act as expert witnesses.

South Carolina medical board officials said the law is intended to make physicians accountable for what they say as expert witnesses, not discourage them from appearing. But some attorneys criticized the measure after several cases were stalled.

In its Aug. 24 order, the state Supreme Court said the law casts doubt on an out-of-state physician's ability to offer testimony, 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. The court said it expected state legislators to review the law and consider what the court said.

The Legislature reconvenes in January 2007.

American Medical Association policy states that testimony a physician gives as an expert witness is considered the practice of medicine.

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