Medical Malpractice and Immunity of an Expert Witness

Harrison v. Roitman, 362 P.3d 1138 (Nev. 2015)

Tort plaintiffs tend to avoid casting their suits as “medical malpractice” whenever they can do so: for explanations see here.

Sometimes, however, they are motivated to do the exact opposite.

In Harrison v. Roitman, 362 P.3d 1138 (Nev. 2015), the plaintiff filed a suit against a psychiatrist who testified in her divorce proceeding as her husband’s expert witness. According to the plaintiff, the psychiatrist prepared and submitted to the court a written report diagnosing her with a personality disorder without ever examining her. The plaintiff portrayed this misdeed as “medical malpractice” because she could not sue the psychiatrist for infliction of emotional distress and defamation. Witnesses can only be criminally prosecuted for perjury. Otherwise, they enjoy a comprehensive immunity against suit and cannot be sued in torts for what they say in court.

The Nevada Supreme Court ruled in favor of the physiatrist. The Court reasoned that the immunity given to testifying witnesses is absolute and covers every statement made in the course of judicial proceedings. Casting a suit against a medical expert witness as “medical malpractice” does not make this immunity disappear.