Physician Testimony and the Litigation Privilege

Physician Testimony and the Litigation Privilege

You receive a deposition subpoena. The American Medical Association encourages physician participation in legal issues to satisfy the physician’s ethical obligations to the patient.The legal duty to tell the truth is required. However, what protects the physician from retaliatory actions should the testimony be undesired or unwelcome?

In California, the protection from retaliation based upon a physician’s testimony is found in the litigation privilege codified in California Civil Code section 47.This Code section entitled Privileged Publications or Broadcast” provides the legal basis for the testifying physician. The statute safeguards testimony if made in “any (1) legislative proceeding, 2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law with a small recitation of specific exceptions to this criteria.

The protections initially only protected against “garden variety” claims of defamation. Occasionally these claims are still asserted, but the legal protections usually make short work of these attempts at harassment. The privilege is designed to allow free disclosure/discussion in the legal setting. Imagine a legal setting where a physician cannot provide a simple explanation as to a treatment choice out of fear any disclosure (whether helpful to plaintiff or defense) could result in personal or professional liability. Such an outcome would hamstring the legal system and help neither the plaintiffs nor defendants.This privilege does not protect a treating physician from the possibility of being subsequently named as a defendant. The privilege protects the content of the communication, not for liability or malpractice. Any concerns about being named a possible defendant should be addressed with legal counsel prior to any testimony.

Over time the focus of the litigation privilege has expanded based upon the specific legal interpretations of the statute and the protection it offers.The current interpretations allow the privilege to apply well beyond the simple defamation claim to “…any communication [made in a judicial or quasi-judicial proceeding], whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 211-212; accord, Moore v. Conliffe, supra, 7 Cal.4th at p. 641; see Budwin v. American Psychological Assn. (1994) 24 Cal.App.4th 875, 880-883; O’Neil v. Cunningham (1981) 118 Cal.App.3d 466, 472-475.)

Yet, situations still arise where physicians can face problems in testifying. There have been cases where physicians discuss matters beyond their own expertise or have even provided knowingly false information. Perjury is not protected. Knowing you have the litigation privilege protection does not provide free license to speculate about issues beyond your knowledge or expertise.

In 2004, the Office of the Attorney General provided an Official Report addressing the interplay of the litigation privilege and 1) subsequent tort actions and 2) the possibility of subjection to professional discipline by the Medical Board of California (87 Op. Atty Gen. Cal. 48).The analysis provided by the Attorney General’s Opinion makes it clear the privilege must apply to bar subsequent tort claims against the testifying physician for many of the reasons discussed in this article. However, when a physician provides specific testimony regarding the applicable standard of care, the Medical Board of California continues to maintain the right to “…discipline a physician for unprofessional conduct even though the actual misconduct does not constitute the practice of medicine or cause harm to individual patients, as long as the misconduct relates to the physician’s fitness or competence to practice medicine.” (87 Op.Atty Gen. Cal. 48).Thus, providing testimony about the standard of care could potentially rise to the level of misconduct should it be shown to be willfully false or rise to a level determined to be unprofessional conduct by the Medical Board.

While broad in scope, situations can and do arise where the privilege can be infringed upon or even breached. Ask for help or guidance from your legal counsel or insurer when your testimony is required. Recognize that your medical opinions will be a topic at deposition and a situation can arise where you, the physician, require the guidance of legal counsel. Knowing you have the protection of the litigation privilege can be of some reassurance, but the freedom to express your findings, and possibly your ‘expert’ opinions, are not without restrictions.


This article appeared in the June 2006 issue of MD News.

Stephen T.Sigler is a shareholder at Neil Dymott and concentrates his practice on the defense of healthcare professionals and general civil litigation. Mr.Sigler may be reached at (619) 238-1712 or ssigler@neildymott.com

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