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State's high court right to suspend testimony rules

Lawmakers should do better job of weighing impact of potential laws

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The S.C. Supreme Court struck a blow for clarity when it suspended a law requiring out-of-state doctors to obtain a temporary medical license before offering expert testimony in South Carolina courts. Now it's the General Assembly's turn to clarify the issue by giving it a complete airing when lawmakers return in January.

The court "cannot allow the administration of justice to be substantially impaired," the five-member court said in its Aug. 24 order.

The court correctly was acting on complaints against a law approved by the General Assembly in June in the waning days of the legislative session.

Among those complaining was Duffie Stone, 14th Judicial Circuit solicitor, who said that the law could have a "huge impact on the criminal docket in Beaufort County" because he might not be able to rely on experts from across the state line in Georgia to testify in South Carolina courts.

The act's intent was to make experts accountable, according to Dr. Louie Costa, vice president of the state Board of Medical Examiners, by making them secure a temporary South Carolina medical license.

But as the state's high court rightly points out, court rules "have always charged the court with performing a 'gate keeping' function in limiting the presentation of expert testimony to situations where the testimony will assist the trier of fact in understanding evidence or determining a fact in issue."

The Supreme Court goes on to say the law "casts serious doubt on a physician's ability to offer testimony regarding the treatment provided to a witness, party litigant, or criminal defendant if the physician, at the time of trial, resides outside of South Carolina. This categorical exclusion overlooks the fact that the physician may have treated the patient in the physician's home jurisdiction, and also that the physician, although at one time licensed and providing treatment to the patient in South Carolina, has relocated out of this state.

And the court points out that although expert testimony is traditionally presented by a witness offering live testimony, lawyers often draw heavily from work authored by prominent national experts.

"It would do a great disservice to our system of justice if the doors of South Carolina courtrooms were closed to these scholarly works and the country's leading medical scholars, who may have no intentions of ever visiting this jurisdiction, because our state law would deem them unqualified to offer expert testimony by virtue of their refusal to subject themselves to the disciplinary authority of the South Carolina Board of Medical Examiners."

Justice requires that prosecutors be able to rely on a range of testimony and resources necessary for a correct, informed decision by a judge or jury. The court system has the means to deal with witnesses who give false or malicious testimony.

Further clouding the issue is how the bill became law without a full airing by the appropriate legislative committees. State Sen. Glenn McConnell, R-Charleston, told The Post and Courier that he was surprised by the provision. He is chairman of the Senate Judiciary Committee, which should have heard any discussion of expert testimony.

The legislature handles hundreds of bills each year, and most of them have an impact on a large number of South Carolinians. Lawmakers should make sure that they understand the language in bills and the impact on people and institutions. The best way to do that is with a public debate before lawmakers vote, including testimony from those affected by the bill.

Had lawmakers not been so quick to approve the bill and had instead sent it to the proper committees for scrutiny, they probably wouldn't be needing to clarify their handiwork under an order from the Supreme Court.