Consider this unusual scenario: A psychologist performs a custodial evaluation in a child custody proceeding. Subsequently, this provider is sued for statements he made in his court-requested evaluation report. Can a health care provider really be found liable for his professional judgment and statements made in connection with a judicial proceeding? We argue, “no!”
We recently represented a psychologist in a similar situation. In that case, the provider performed the evaluation to assist the judge in determining which parent was better suited for primary custody. After reading the report, one of the parents sued the psychologist for statements he made in the report. We argued the provider was protected by Maryland’s common law “absolute litigation privilege,” and persuaded plaintiff’s counsel to dismiss voluntarily the case.
The absolute litigation privilege is alive and well in Maryland. It protects litigation participants from liability in tort for words spoken or written during a judicial proceeding. This privilege extends to statements made in court, court filings and extrinsic statements “connected contextually” to the pending proceeding. This immunity is “absolute,” notwithstanding any characterization of the participant’s purpose or motive. An important goal of this privilege is to encourage witness participation in judicial proceedings without fear of subsequent litigation for damages arising out of the witness’s testimony.
Bottom Line: Although fortunately not a common issue, we had two recent health care providers sued for providing expert opinions. This may be the beginning of a trend, but we are prepared to combat and stop these claims at the outset.
If you have any questions about the absolute litigation privilege, or are concerned about providing an expert opinion, please contact us. We’re here to help.
 The doctrine of absolute litigation privilege was affirmed by the Fourth Circuit Court of Appeals in Day v. Johns Hopkins Health Sys. Corp., 907 F.3d 766 (4th Cir. 2018) (applying Maryland law). In Day, the Fourth Circuit — on the basis of absolute litigation privilege — upheld the district court’s dismissal of claims against a physician and hospital, involving allegedly false medical testimony by a physician during an administrative hearing. Id. at 769.