Conclusion. One more thing physicians might consider in deciding whether absolute immunity for expert witnesses is a good thing or bad is the position taken by the one group that always benefits from increased litigation, lawyers. Complaints to licensing authorities are somewhat analogous to expert testimony in professional liability lawsuits, in that in each circumstance, someone is accusing a professional of negligence or other misconduct. While individuals who file complaints against physicians enjoy only a qualified immunity,29 a person who files a Bar complaint against an Arizona attorney enjoys absolute immunity.30 It is interesting that attorneys, who as a group would stand to benefit the most from the increased litigation that might flow from elimination of absolute immunity, and who certainly have nothing to gain by enis improper expert witness testimony unprofessional conduct or the negligent practice of medicine? Pepp L Rev. 2006;33:275–310. 29 Regarding complaints about allopathic physicians, A.R.S. §32-1451 A provides in part as follows: “Any person or entity that reports or provides information to the board in good faith [that phrase again] is not subject to an action for civil damages.” Regarding osteopathic physicians, see A.R.S. §32-1855.03, which also incorporates the “good faith” limitation. 30 Drummond v. Stahl, 127 Ariz. 122 (App. 1980) (“In our opinion, public policy and legal precedent compel us to adopt the position that there is an absolute privilege extended to anyone who files a complaint with the State Bar alleging unethical conduct by an attorney.”)
couraging frivolous Bar complaints, operate in a system in which individuals who make those complaints enjoy complete immunity. It may be that attorneys have concluded that the risk of an occasional frivolous complaint is outweighed by the benefits of the free expression of criticism. If attorneys prefer a system in which unfettered criticism is preferred over increased litigation, physicians might want to consider where their interests lie.
J. ALEXANDER DATTILO J. Alexander Dattilo is an associate in the Phoenix, Arizona law firm of Milligan Lawless, P.C. Alex’s practice focuses on labor and employment, healthcare litigation, and general commercial litigation, including representation of physician practices, individual physicians and other healthcare providers in employment disputes, shareholder disputes, practice breakups and related matters. Alex is a member of the Arizona Association of Health Care Lawyers and the Board of Directors of the Maricopa County Bar Association. He obtained his law degree from the University of Arizona, James E. Rogers College of Law, and is licensed to practice in Arizona and Pennsylvania.
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