Tampering with expert witnesses in a medical malpractice case

November 14, 2013

Wellstar Health Systems, Inc. v. Kemp, — S.E.2d —, 2013 WL 5976853 (Ga. App. 2013)

This case reveals a rather disturbing set of facts: an expert who provided the requisite affidavit for the plaintiffs’ malpractice suit against a hospital was successfully pressured by the defendant’s attorney to withdraw from the case. The campaign against the expert included an implicit threat of being fired from his job at another hospital.

After establishing these facts, the trial judge disqualified the defendant’s attorney, struck the defendant’s answer to the complaint, and entered a default judgment on the malpractice issue. The appellate court affirmed the attorney’s disqualification, but decided that striking the defendant’s answer was too harsh because the plaintiff could find another eligible expert to support his allegations against the hospital and its doctors. Any hardship that the plaintiff might encounter in this regard, held the court, “can be addressed by the trial court with a number of less severe sanctions than the complete foreclosure of [the defendant’s] defenses to liability.” The case was remanded for trial.

This decision strikes me as reasonable, but I would have felt much better about it if the appellate court also allowed the plaintiff to use the intimidated expert’s affidavit as evidence. This ruling was necessary, in my opinion, because Georgia has no “forfeiture by wrongdoing” exception to the hearsay rule. Cf. Federal Rule of Evidence 804(b)(6) (rendering admissible an out-of-court statement offered against a party that wrongfully caused the declarant’s unavailability). Alternatively, the court should have shifted the persuasion burden on the malpractice issue to the defendant, as provided by the spoliation doctrine.

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