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Lawyers file suit to allow testimony |
BY BEN CRITES, The Island Packet
Published Friday, September 15, 2006
Three Columbia lawyers have filed a lawsuit to wipe out a requirement that 14th Judicial Circuit Solicitor Duffie Stone says threatens numerous Beaufort County criminal cases that rely on testimony from out-of-state doctors.
The suit was filed against the state Board of Medical Examiners on Sept. 8 in response to legislation requiring out-of-state doctors to obtain a $75 temporary South Carolina medical license to provide expert testimony in court.
The law, passed in June by the General Assembly, also created stricter requirements to obtain documents from out-of-state physicians.
Filed on behalf of 36 South Carolinians involved in medical malpractice or workman's compensation litigation, the suit argues that the law violates "state and federal constitutional guarantees of equal protection, due process and free speech," among other violations.
"Ultimately, what we're saying is fundamental rights are at stake when you start saying a person who is licensed in good faith in another state would have to have a license here and essentially be taxed to give testimony in a court," said Charles Henshaw Jr., one of the three lawyers who filed the suit.
The lawyers have filed a petition asking that the Supreme Court rule directly on the lawsuit, preventing the litigation from first going through lower courts. The other two lawyers are W. Allen Nickels III and John S. Nichols.
So far, the Supreme Court appears to be on their side. On Aug. 24, all five justices signed a ruling that halted the law's enforcement. Their ruling said, "The effect of the revised statutes has the potential to substantially impair the orderly administration of justice."
Dr. Louie Costa, vice president of the S.C. Board of Medical Examiners, which is in charge of medical licensing, said the board will meet this morning to discuss its reply to the lawsuit and won't comment until then.
But Costa has said the law's intent was accountability, and the licensing requirement wouldn't provide an unnecessary burden that would keep out-of-state doctors from testifying. The temporary licenses can be produced within 24 hours, he has said, and the cost likely would be covered by the plaintiff, the plaintiff's attorney or a defense firm.
"Right now we have no jurisdiction, enforcement or disciplinary action for testimony from witnesses that is injurious or malicious," Costa has said.
But Stone, whose circuit includes Beaufort and Jasper counties, said the licensing requirement would have been detrimental to many cases his office tries. That's because many victims of violent crimes in southern Beaufort County are transported across state lines to Memorial Health University Medi-cal Center in Savannah, the closest hospital with a Level 1 trauma unit.
The cases involving those people often are dependent on testimony from the doctors who treated the victims. And more often than not, those doctors are licensed in Georgia.
"With any assault or felony DUI case, how do you prove serious bodily injury? You put the doctor on the stand," Stone has said. As to the suit filed by the Columbia lawyers, he said, "I'll offer any help I can give them."
Another solicitor in the same situation is Donald V. Myers, who is in charge of the judicial circuit that includes Edgefield, McCormick and Saluda counties. In an affidavit included in the lawsuit, Myers said the law, known as Act 385, presented "extreme hurdles" during a felony trial involving a 3-month-old baby with head injuries.
"When we called the main witness, an out-of-state pediatric neurosurgeon, to testify to the injuries ... the defendant objected based on Act 385," Myers wrote. "Act 385 will present major barriers. ... Justice will be denied, and an injustice will be perpetrated on innocent victims."
Henshaw said it's ultimately an issue of constitutionality.
"People have a right to come into court and express themselves freely," he said. "There shouldn't be anything that prevents that."
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Article courtesy of http://www.islandpacket.com/.
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William C. Head, Senior Partner
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