Fallout from Examination of Plaintiff by a Physician Chosen by the Defendant

Saying the legal system is adversarial is stating the obvious. The extent to which the conflict between opposing parties has spread outside the courthouse is not always obvious.

Recently, Steven Gursten, an attorney in Michigan, wrote a blog exposing blatant contradictions between the statements made by his client to anindependent medical examiner and the statements the independent medical examiner claimed his client made. The independent medical examiner, who is a member of the state’s attorney disciplinary board, filed a grievance against Attorney Gursten. Steven Gursten has fully set forth the circumstances regarding the testimony and the subsequent action by the physician in his blog and you can read all of the details for yourself: Sticks and stones and attorney disbarment? Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury case from the public?”

Attorney Gursten’s situation is not the only example of the escalation of conflict in the legal system and among its various participants. Hospital systems often discourage their practicing physicians from testifying in cases on behalf of their patients to provide evidence of the causation of their injuries or a breach of the standard of care by a physician. These physicians are not similarly discouraged from testifying on behalf of the defendants. Some medical organizations seek to prevent this type of testimony also.

In the criminal system, more laws are passed making it easier for prosecutors to obtain a conviction. Consequently, the risk to the accused of harsher penalties if he or she pursues a defense is greater. Seizure of property prior to any conviction deprives the accused of the ability to mount a defense. The threat of incarceration and forfeiture of the property results in a plea being the most beneficial course of action, regardless of innocence. If you really want to see the impact of a criminal system that does not work, add up all of the years innocent people lost while wrongfully incarcerated. One such report can be found at “Innocence Project.”

Media campaigns undermining the jury system are rampant. Corporate America and the medical profession spend enormous amounts of money to curtail individual rights. These tactics are not new; they are just more successful.

Attorneys like Steven Gursten continue to “fight the good fight.” Every day in the practice of law is a struggle for justice; a struggle to see truth prevail; and, a struggle to keep integrity in the system. In his blog, Attorney Gursten explains why his is risking his law license.

Fortunately, Attorney Gursten’s license is safe. The grievance was dismissed. He provides a detailed explanation in his blog announcing the victory. Not only did Attorney Gursten keep his license, but also an important precedent was established. The Michigan Attorney Grievance Commission clearly stated the information contained in the blog was protected free speech.

Free speech is vital to the ability to practice law and represent clients. The free and unhindered exposure of abuses in the legal system helps to maintain the integrity of the system. Those attorneys who do not back down from the pressures to allow abuses to be hidden are to be commended.

3 Comments

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