An Arkansas judge has deemed one of the State’s medical malpractice laws “unconstitutional,” saying a provision that prevents patients from asking their doctors about the standard of care at trial “infringes on an absolute fundamental right,” ArkansasOnline reports. In an order issued on January 5, 2017, Judge Wendell Griffen of the Pulaski County Circuit Court told a cosmetic surgeon that he would have to answer questions about the adequacy of care he provided, despite a portion of Arkansas’ Civil Code that shields medical professionals from such cross-examination.
Judge: Doctors Can’t Be Shielded From Self-Incriminating Testimony
The law, a provision in Arkansas’ Medical Malpractice Act, bars injured patients from questioning their doctors about the adequacy of the care they provided. “This statute,” Pulaski County Circuit Judge Wendell Griffen writes, “prevents a plaintiff from inquiring, cross-examining or introducing probative evidence at trial that go to the core of a medical malpractice claim.”
Under current Arkansas law, malpractice plaintiffs can’t ask their physicians to explain the standard of care that should have been provided for the treatment at issue. Nor can patients ask about whether their doctor fell short of the standard.
Since medical professionals can only be held accountable for violating the relevant standard of care, these questions strike at the heart of medical malpractice litigation, Circuit Judge Wendell Griffen wrote in his three-page order. “This preclusion infringes on an absolute fundamental right to cross examine witnesses and as a result,” Judge Griffen says, “strips the plaintiff of his right to a fair trial.”
As Witnesses, Physicians Should Be Open To Cross-Examination
All parties engaged in civil litigation are entitled to due process, including the opportunity to cross-examine any and all witnesses to the incident. That right, Judge Griffen argues, obviously includes the physician who delivered care in the first place.
Arkansas’ law actually goes further, though, since it protects all medical professionals in the State from self-incrimination. Alongside doctors, nurses, physician’s assistants, veterinarians and pharmacists are all shielded from adverse questioning. “No medical care professional,” Arkansas Code §16-114-207 reads, “shall be required to give expert opinion testimony against himself or herself.”
And through an opinion from the Arkansas Supreme Court, medical professionals are also saved from providing expert testimony on standards of care against their employers, including hospitals, out-patient facilities and nursing homes.
Why Do Medical Professionals Get Special Treatment?
No other category of professional receives similarly-lenient treatment in Arkansas’ courts, according to Jimmy Simpson, the civil attorney who convinced Judge Griffen to invalidate the legal provision. “It is tantamount to preventing questioning a car designer about how to design a car, a bridge-builder about how to build a bridge or an architect about how to design a building,” Simpson argued in court filings.
“Simply put,” the attorney continued, “[the law] prevents the jury from hearing what the person who is charged with breaching the standard of care thinks the standard of care is in a trial that is all about breaching the standard of care.”
The restriction isn’t limited to Arkansas State courts, either. New Hampshire has a similar law, explicitly ruling out the cross-examination of medical defendants on questions of the care standards at issue in a case. In a 1944 ruling, the Supreme Court of New Jersey held that expert testimony is only admissible when the expert has voluntarily contracted to provide it, which would probably rule out most situations of this sort.
In the vast majority of states, however, whether or not a defendant medical professional can, in effect, be made into an expert witness against him or herself has been a significant source of controversy. Most courts are still left to their own discretion in making these decisions.
Cosmetic Surgeon Will Have To Answer To Patient
Judge Griffen’s decision was handed down only four days before the case in which Dr. Jim English finds himself accused of malpractice is scheduled for trial. In a lawsuit filed in 2014, one of English’s former patients says the surgeon botched a skin removal procedure, leading to severe pain, widespread tissue death and nearly a year of open wounds. English is the owner of the English Plastic and Cosmetic Surgery Center, a practice in Little Rock.