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Code of Silence
Medical associations step up scrutiny of doctors who testify for medical malpractice plaintiffs
June 25, 2003
By: Steve Ellman
Coral Gables personal injury attorney Gary Friedman thought he had an unimpeachable expert witness to call this spring in his medical malpractice lawsuit on behalf of Cristine del Cueto, a 3-year-old Miami girl crippled in the course of brain surgery at New York’s Columbia Presbyterian Medical Center in October 1995.
With trial set to begin in a New York courtroom April 9, Friedman, a partner at Friedman & Friedman, had arranged for Dr. Robert Rand, a renowned neuro-oncologist, former professor of neurosurgery at UCLA, and current associate medical director of Santa Monica’s John Wayne Cancer Institute, to fly from California to testify for the plaintiff.
But on March 10, Friedman opened his mail and found a letter of apology from the doctor. “I have been informed by the senior neurological society to discontinue expert testimony for plaintiffs or risk membership,” Rand wrote. “Therefore I am withdrawing as your expert.”
Along with the letter was Friedman’s witness fee check to Rand, neatly cut in half. “He was our centerpiece,” lamented Friedman, who moved to postpone the trial.
Dr. Rand withdrew from the del Cueto case after the American Association of Neurological Surgeons sanctioned him for his testimony for plaintiffs in an unrelated, Midwest medical malpractice case. “It was implied that they didn’t like my plaintiff-side testimony,” Rand told the Daily Business Review. “There was no point in aggravating them any further. They write the rules.”
Del Cueto’s counsel asked for an evidentiary hearing, alleging that defense counsel cooperated with the society in driving Rand off the case. But they ended up agreeing to settle the case, “at a discount,” according to Friedman.
“They got to him,” Friedman said. “You expect them to attack your witnesses in the courtroom. Now they’re trying to do it through their medical societies.”
Friedman’s experience isn’t an isolated one. With the support of the American Medical Association, physician groups in Florida and across the country are stepping up scrutiny and pressure on their colleagues who testify in malpractice cases, particularly those who work for plaintiffs. In some cases, medical associations are taking disciplinary action against expert witnesses.
Like a number of other state and specialty medical associations, the Tallahassee-based Florida Medical Association, in the past 18 months, has activated a system to track and punish physicians who provide allegedly fraudulent expert testimony against their colleagues.
In addition, Florida doctors — both under the auspices of the FMA and on an ad hoc basis — have begun publishing lists of physicians who testify for plaintiffs.
Plaintiff lawyers say the goal of these efforts is to discourage doctors from providing expert testimony that helps plaintiffs bring malpractice actions. But the FMA says doctors who provide competent and truthful testimony have nothing to fear.
The FMA explicitly links its heightened interest in medical expert testimony to the increase in doctors’ professional liability premiums over the past few years. Unchecked improprieties in expert testimony, the group contends, have contributed to unmerited and excessive damages awards, which allegedly drive up premiums.
In the doctors’ view, medical malpractice litigation is rife with bogus testimony that the courts have failed to weed out, so medical associations must do the job for them.
“Experienced testifiers are real smooth on the stand — too smooth for judges and juries to discriminate the truth,” said FMA secretary Dr. Dennis Agliano, a Tampa surgeon who chairs the FMA’s tort reform committee. He insists that the effort will scrutinize plaintiff and defense experts equally. “Who is better prepared [than doctors] to evaluate medical testimony?”
“We’re not for changing the jury system,” he added. “You can testify all you want. But falsely — then you’ve crossed the line. That leaves it to other doctors to deal with them.”
But Neal Roth, a plaintiff attorney and partner at Grossman & Roth in Miami who co-chairs the Academy of Florida Trial Lawyers’ medical malpractice committee, has referred to the FMA effort as a “witness-tampering program.” He said that “the whole idea is to create an atmosphere in which doctors are afraid to testify.”
Expert witnesses are central to medical malpractice litigation, with most cases turning on the comparative credibility of the plaintiff and defense witnesses. But in the close-knit world of physicians, the stigma on those known to testify against their colleagues is a powerful disincentive to offer testimony.
Already, plaintiff attorneys say they find it difficult to find expert witnesses among physicians who practice in the same state as defendant doctors. As the traditional social and professional pressure increasingly is coupled with the new threat of disciplinary sanctions, plaintiff lawyers say, witnesses are becoming even harder to find — making it much tougher to prosecute malpractice cases.
Penalties include expulsion
Under the FMA’s peer review system, complaints about members’ expert witness testimony are brought to the FMA’s committee on ethical and judicial affairs, which assigns them for evaluation by an expert in the same field as the doctor being testified against.
Depending on the expert’s report, the committee may call for a hearing, featuring the doctor who provided testimony and the doctor who was the defendant in the malpractice case. The committee then reports to the FMA board of governors, which may take disciplinary steps ranging from letters of concern to suspension to expulsion from the medical society.
The process is the same as that used for other ethical or unprofessional conduct complaints, Agliano said. While the private FMA cannot revoke anyone’s medical licenses, he said, it will support physicians who petition the Florida Board of Medicine seeking state disciplinary action against alleged violators, including revocation of a medical license.
The Board of Medicine is a 15-member body appointed by the governor. It is made up of 12 doctors, who may or may not be FMA members, and three lay persons. Board officials said they know of no case so far in which the board has revoked a doctor’s license over improper conduct as an expert witness.
The FMA has yet to issue any sanctions, Agliano said, since it only began investigating complaints about 18 months ago. But FMA counsel Jeff Scott said that there are “many complaints going through the system right now.” In handling these cases, he insisted, his association is very concerned about protecting the due process rights of those accused of improprieties. “This is not a lynch mob,” Scott said.
The mere threat of a medical association complaint, however, is enough to chill potential witnesses, plaintiff attorney Roth said. “Good witnesses are busy doctors who appear chiefly as a public service,” he said. “They don’t need the time and trouble of defending their testimony after the fact.”
Weeding out bogus testimony
The importance of expert witness testimony in medical malpractice lawsuits is enormous. According to University of Miami law professor Laurence Rose, director of the law school’s litigation skills program, “in most medical malpractice claims — as many as 90 percent — the quality of expert witness testimony is what persuades juries and judges.”
Until about 40 years ago, expert witnesses often were appointed by the court itself and testified as neutral parties, Rose said. Now, however, they are called almost exclusively by defense and plaintiff counsel and appear as advocates for the side that hired them.
The courts have developed screening procedures to certify that the experts are qualified. Federal courts and many states use the Daubert standard; Florida and other states use the Frye standard. Some states have developed their own tests.
The Frye standard allows as expert testimony only that which relies on “generally accepted” professional opinion and methods. The Daubert standard allows for a wider range of opinions, but subjects their underlying rationales to more thorough examination.
Physicians’ groups argue that these tests have failed to weed out bogus expert testimony. “The present system could use stricter standards,” said FMA counsel Scott. “As it is, there’s too much leeway for the judge.”
“There are lots of honest experts,” Agliano said. “But there are also a lot of phony experts for hire, who run advertising aimed at lawyers all over the country.”
Still, judges increasingly are on their guard. In a February 2000 personal injury lawsuit, for instance, Broward Circuit Judge Robert Lance Andrews refused to allow Pembroke Pines neurosurgeon Stephen Gervin to testify as an expert, calling him an “insidious perjurer” who “wouldn’t know the truth if it leapt up and bit him on the ass.” Gervin appealed to the 4th DCA, which affirmed Andrews’ ruling last September.
The University of Miami’s Rose contends that medical associations are wrong in their contention that the courts are incapable of effectively evaluating the integrity and competence of medical expert witnesses.
“Judges and juries always make factual decisions,” he said. “The reality is that judges and juries, when confronted with witnesses who work only one side, learn that through cross-examination. They weigh that fact.”
Conspiracy to obstruct justice?
North Miami Beach neurosurgeon Gary Lustgarten has seen how medical associations apply their peer review systems to expert witnesses in medical malpractices cases. For 20 years, he has testified as an expert for both plaintiffs and defendants.
“I testified honestly on every occasion,” he told the Review. But the medical establishment “felt I was a plaintiffs advocate and set out to damage my credibility.”
In November 1998, after Lustgarten testified against two North Carolina doctors in a wrongful death claim that was settled for $2 million, one defendant filed a grievance with Lustgarten’s national professional group, the American Association of Neurological Surgeons.
The complaint alleged that Lustgarten had misstated the standard of care in North Carolina and falsely accused the defendant of altering a medical report. According to Lustgarten, no complaints were brought against other experts who gave similar testimony in the case.
The AANS expert witness review system, established 1n 1983, falls within the group’s “professional conduct program.” As detailed on the association’s Internet site, any member of the group can gather evidence against any another member and present it to the group’s professional conduct committee. The committee reviews the evidence, furnishes copies to the accused member, and holds hearings on the complaint.
At the hearings, both parties can have an attorney, who can ask “clarifying questions,” though “extensive” cross-examination is forbidden. The committee reaches judgment in a closed session. If it finds for the complainant, it can censure, suspend, or expel the accused doctor. Such black marks on professional resumes can severely impact physicians’ employment prospects as well as effectively rule out future lucrative work as an expert witness.
In 2000, as a result of the North Carolina doctor’s complaint, the association suspended Lustgarten’s membership for six months. One of the North Carolina doctors also complained to the North Carolina Medical Board, which revoked Lustgarten’s license to practice in that state in April 2002.
Lustgarten appealed the North Carolina board’s decision, which was reversed a year later by Wake County Superior Court Judge Donald Stephens. But Stephens upheld the board on one finding — that Lustgarten lacked an evidentiary basis for his opinion that the defendant physician had altered a medical note — and sent that charge back to the medical board for reconsideration. Lustgarten said he will contest any further medical board hearings.
Lustgarten also was sanctioned for testimony against a Georgia physician in a wrongful death claim that was tried twice in the mid-1990s; after both trials, the juries found for the defendant.
In June 1999, the defendant doctor filed a grievance with the AANS against Lustgarten — a veteran of 35 years of practice — saying he lacked familiarity with local standards of care. Lustgarten again was suspended by the professional association.
But in April 2001, Lustgarten filed suit against the AANS in the U.S. District Court for the Southern District of Georgia. Using a section of U.S. code drafted to counter groups like the Ku Klux Klan, Lustgarten alleged that the AANS system of peer review and sanctions of expert witnesses constituted a conspiracy to obstruct justice. He also brought claims for restraint of trade under the Clayton and Sherman antitrust acts.
“Defendants suggest this case is about ‘judicial interference in the AANS’s internal affairs,” Lustgarten’s brief argued. “Plaintiff suggests … it is about the interference of defendants in the internal affairs and processes of the nation’s courts.”
Lustgarten’s suit was removed for trial to the U.S. District Court in Chicago, where the AANS is based. He dropped the suit, however, after the 7th U.S. Circuit Court of Appeals unanimously ruled against the plaintiff in the near-identical Austin v. AANS in June 2001.
‘Revenge’
The plaintiff in Austin was Dr. Donald Austin, a Detroit neurologist and former vice chair of the Michigan Board of Medicine. In 1997, he was suspended from membership in the AANS after he testified for a plaintiff in a malpractice suit. The association ruled that Austin violated professional conduct by falsely testifying that “a majority of neurosurgeons” would agree with his testimony.
In December 1998, Austin filed suit against the AANS in U.S. District Court in Chicago, alleging that the association’s action was “revenge” for his testimony against a fellow neurologist. In October 2000, Judge Elaine Bucklo granted summary judgment for the defense.
The 7th Circuit, affirming the lower court in June 2001, held that Austin had been afforded due process by the AANS. It also held that his claimed “disastrous” drop in annual expert witness income from $220,000 to $77,000 after his suspension failed to qualify as an “important economic interest,” since it was not his “principal source” of livelihood.
In the opinion, written by Judge Richard Posner, a conservative stalwart, the court rejected Austin’s claim that the AANS had operated in bad faith and was prejudiced against plaintiff witnesses.
The appellate panel acknowledged Austin’s allegation that the neurological surgeons’ program had only considered complaints against plaintiff witnesses and not against doctors who testified for defendants. But, the court said, “the reason is at once obvious and innocent” — false testimony that favors defendants draws no complaint because it supports the legal position of AANS members.
The 7th Circuit not only upheld the lower court, it encouraged the medical society to police its members’ expert witness testimony. “This kind of professional self-regulation rather furthers than impedes the cause of justice,” the court said. “Judges need the help of professional associations in screening experts. … More policing of expert witnessing is required, not less.”
John Vail, a staff attorney with the Academy of Trial Lawyers of America who acted as co-counsel on Austin’s appeals, called the 7th Circuit opinion “remarkable.” The AANS “may not be operating in bad faith but it’s clearly not an even-handed procedure,” he said.
In January of last year, the U.S. Supreme Court refused to hear an appeal of the 7th Circuit ruling. So Austin now stands as the leading case law nationally on medical societies’ regulation of expert witness testimony.
Toughening standards
Even before the Austin ruling, medical societies claimed the authority to regulate expert witness testimony because, according to the AMA, “the giving of medico-legal testimony … [is] considered the practice of medicine.” But in the aftermath of Austin, more doctors’ groups have followed the AANS example.
In February, the American Society of Anesthesiologists, explicitly using the AANS program as a guide, began planning for a process “that could deal with outrageous expert medical testimony by ASA members,” wrote president-elect Dr. Roger Litwiller in the society’s newsletter. The group is scheduled to vote on the new process at its annual meeting in October.
Last week, at the American Medical Association’s annual meeting in Chicago, state and medical specialty groups within the AMA House of Delegates pushed for a bundle of measures to toughen oversight of expert witness testimony.
The AMA passed a resolution specifically aimed at expert witnesses in tobacco-related litigation. It called for the creation of “a mechanism to investigate claims of false statements by physicians” in such cases, as well as the identification of “the means to involve concerned state and specialty medical societies … and to inform appropriate state medical licensing boards of any actions taken.”
Other resolutions called for mandatory guidelines for the training and credentialing of medical expert witnesses, for the establishment of a peer review process to sanction those doctors who provide “false and/or egregious testimony,” and for the creation of state registries of doctors who serve as expert witnesses.
The Florida Medical Association also has been busy trying to stiffen standards for medical expert witnesses. The group backed a measure during the state Legislature’s medical malpractice special session in June providing that the only doctors who could testify against medical specialists are those who practice in the same specialty.
Another measure would require out-of-state physicians to apply to the Florida Board of Medicine for permission to testify in Florida courts. FMA counsel Scott said the proposal was intended “to assure that witnesses are familiar with the prevailing standard of care” in the Florida jurisdictions where they testify.
The special session has been extended, however, so the fate of legislation affecting expert witnesses in medical malpractice cases remains uncertain.
Plaintiff attorneys say the real purpose of these proposals is to shrink an already small pool of plaintiff witnesses. “The best doctors don’t need the money and only testify as a public service,” Neal Roth said. “Too much paperwork and they won’t do it.”
Despite the legislative proposals in Tallahassee, the plaintiff bar is more concerned about the FMA’s expert witness peer review program, which is modeled on the neurological surgeons’ effort. Roth said the FMA’s witness review is “a case of the fox guarding the henhouse.”
In every instance of such sanctions by medical associations around the country, the target has been a doctor who testified for the plaintiff side, he said. “It’s more pressure on doctors not to get involved.”
Beyond the sanctions program, Roth said, the FMA and its members are engaged in what he called “blacklisting” of doctors who testify for plaintiffs. He said the FMA is collecting names of medical expert witnesses and whom they have testified for, so that other doctors will ostracize them.
As evidence, Roth cites a September 26, 2002, letter from an Alachua County physician, who asked to remain anonymous. The letter describes a visit last fall to the Alachua County Medical Society by an FMA representative.
“The speaker’s presentation of an [sic] program of threats of professional sanctions, the intentional infliction of financial damages through FMA-sponsored disciplinary actions, and the encouragement of professional shunning sent a chill down my spine,” the doctor wrote.
The letter quotes the FMA speaker as saying, “Now … we’re going to keep a registry of these ‘experts’ and we’ll just go to the hospitals where they work and put a little something on the bulletin board with their name and the number of cases they’ve testified in. Now, we aren’t going to SAY anything but, well, there it is for everyone to see.”
FMA secretary Agliano acknowledged that he was that speaker. “I must have given that talk to 50 different counties,” he said, claiming that the letter “added a lot of false things.” He insisted that the FMA’s witness-naming program was “not about intimidation.”
But, he said, “there are a lot of doctors who secretly testify out of town. I have a right to know who I’m breaking bread with.”
According to Agliano, a useful new source for identifying doctors who testify in medical malpractice cases is www.medicalexpertreport.com. The site, launched in March by Orlando-area emergency physician Tim Bullard, is a data base that’s searchable through drop-down menus for city, county, state, physician, specialty, type of case, type of expert, name of defendant, date or amount of verdict or settlement, case number.
Bullard, a director of the Florida College of Emergency Physicians, said he set up the site as “a matter of public record, so providers can understand and form a view of who is active as an expert witness.” Bullard said the site contained “no negative commentary, no labeling.”
When asked whether he created the Web site to discourage doctors from testifying for plaintiffs, Bullard replied, “I’m shocked. That would violate the constitution.”
Noting that the site lists both defense and plaintiff witnesses, Bullard asked, “Don’t people have the right to public information? Is anyone listed who’s ashamed of what they’re doing?”
The University of Miami’s Rose said the FMA has clear legal support for its scrutiny of doctors who serve as expert witnesses. “It would be one thing to say they can’t testify, which would violate First Amendment rights,” he said. “It’s another to rule on the competency of their testimony. That’s ‘medical practice,’ in the sense that experts are articulating a medical opinion.”
But plaintiff lawyer Roth said the doctors’ complaints about expert witness arise from their growing rejection of the right of injured patients to sue doctors for malpractice. “We say that if there were no medical malpractice, there’d be no medical malpractice suits,” he commented. “The doctors say that if you can’t get an expert, you can’t bring a claim.’”
Steve Ellman can be reached at sellman@floridabiz.com or at (561) 820-2071.
CORRECTION
This story inaccurately described an appeal by Pembroke Pines neurosurgeon Stephen Gervin seeking to expunge Broward Circuit Judge Robert Lance Andrews’ derogatory comments about him from the record. The article should have said that the 4th District Court of Appeal upheld Circuit Judge Leonard L. Stafford’s dismissal of Gervin’s lawsuit on due process grounds, though the panel said it did not “condone the language or procedure” used by Judge Andrews.
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