stating, under a prior version of workers’ compensation scheme that an independent physician examining workers’ compensation claimants, at the request of the commission for the purpose of reporting their medical conditions was performing an “investigative-medical fact-finding function”
How later courts described this case
- stating, under a prior version of workers’ compensation scheme that an independent physician examining workers’ compensation claimants, at the request of the commission for the purpose of reporting their medical conditions was performing an “investigative-medical fact-finding function”
- concluding that the litigation privilege shielded a physician from liability arising from his testimony in judicial proceedings but not from claims arising from the manner in which he conducted examinations
- “[i]n determining whether the prosecutor’s acts are quasi-judicial as opposed to investigative or administrative, the [federal] courts have applied a functional analysis of his activities, rather than simply stating that he is a prosecutor whose status entitles him to absolute immunity”
- “It is a well-established rule that judges, counsel, parties, and witnesses are absolutely immune from civil suits for defamatory remarks made during and relevant to judicial proceedings.”
Written by the judges who cited it.
The opinion
Sweeney, J.,
dissenting. The majority holds by way of syllabus that appellant “is not absolutely immune from a civil suit based on his examinations, notwithstanding that his report and testimony at an adjudicatory proceeding are privileged under the doctrine of witness immunity.” The dichotomy thus created between the witness’ out-of-court examinations and in-court testimony is false insofar as it imputes a separate, independent legal existence to the necessary preliminary stages of an expert’s participation in a case. To say that the “function of conducting out-of-court physical examinations of claimants is not ‘intimately associated’ with the quasi-judicial phase” is to ignore the purpose of referring a claimant to a specialist in the first place. Without a pre-appearance examination the expert’s testimony is necessarily conjectural. The examination is “ ‘intimately associated’ ” with the quasi-judicial phase because it is the examination that makes the subsequent testimony probative of anything.
The majority further asserts that “the need for a damage remedy to an injured claimant is essential.” Yet the damages appellees seek flow from appellant’s testimony and the commission’s reliance thereon. These asserted damages consist of the difference between the amount the commission awarded each appellee and the amount the commission would have awarded if appellant had not made his examinations and entered his testimony. The allegedly deficient examinations, standing alone, caused no damages to appellees. 2 It was appellant’s testimony before the commission that provided the basis for the commission’s awards, setting benefits at levels lower than those to which appellees believed themselves entitled. Thus, even if the dubious bifurcated-function theory advanced by the majority is adopted, the “damage remedy” created thereby is necessarily linked to the physician’s testimony and not his examination. The majority makes it quite clear that it does not intend to abrogate testimonial immunity totally, stating that “absolute immunity is necessary to insure that judges, prosecutors, lawyers and ■witnesses can perform their respective functions in an adjudicatory proceeding without harassment or fear of consequences.” If a witness is to continue to enjoy the testimonial privilege the majority seems to want to provide, then appellant should be immune both under traditional doctrine and under the novel, and in my view erroneous, theory posited herein.
Appellees do make serious allegations, the substance of which is that appellant is an abuser of the system. According to appellees, appellant makes minimal examinations, uniformly recommends the denial or reduction of benefits, and then collects his fee. Nevertheless, the abuses appellees complain of can be corrected without abrogating the traditional witness immunity.
In my view, the judicial or administrative body employing a negligent expert has the authority to invoke internal sanctions thereby obviating the need *453 for an aggrieved party to seek an alternate forum. If, for example, this court determined that the commission’s reliance on testimony derived from an inadequate examination constituted an abuse of administrative discretion as a matter of law, then the same practical result is reached without having to file a separate lawsuit.
This approach would preclude the admission or consideration by the commission of medical reports based on inadequate examinations. The effect would be to make the administrative process self-correcting. Adoption of this procedural mechanism, moreover, would permit the proceedings to be administratively self-contained by eliminating the potential for collateral lawsuits in diverse forums based on the same underlying facts. 3 Most importantly, this approach preserves the traditional witness immunity without jeopardizing the rights of claimants who are aggrieved by negligent or corrupt expert witnesses.
For the reasons hereinbefore stated, I would reverse the court of appeals; provided, however, that testimony or medical reports based on inadequately or otherwise negligently performed examinations could not be considered as evidence by the commission in setting appropriate benefit levels.
There is no allegation here that any of the claimants’ injuries were enhanced or aggravated as a result of their submission to examinations by appellant.
As Judge Potter noted in his dissent, “the rationale of the [court of appeals] majority would seem to me to apply to all expert witnesses and perhaps to others in a myriad of cases.” There is nothing in the bifurcated-function theory that limits its applicability to expert witnesses although this theory is most likely to be asserted when expert witnesses are involved.