Expert witness sues critics

The case raises the question of who can best review expert testimony: courts or professional societies?

By — Posted June 28, 2004

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California internist and geriatrician John Fullerton, MD, says a request for the Florida Medical Assn. to review his expert testimony in a medical malpractice trial defamed him and hurt his professional credibility.

Earlier this month, Dr. Fullerton sued the FMA and three physicians who asked that the association review his testimony for defamation. He also is asking the court to put an end to an FMA program that subjects courtroom testimony to peer review. Dr. Fullerton believes that the program is designed to intimidate physicians who testify for plaintiffs in medical malpractice trials and is suing, in part, under the Florida RICO law.

"I certainly didn't want things to get to this point, but they have," said Dr. Fullerton, who practices in San Francisco and has testified for both plaintiffs and defendants. "I didn't think I could put up with the intimidation tactics anymore in Florida. There is real medical malpractice going on out there, and it's up to doctors to offer their expertise."

Dr. Fullerton's lawsuit comes at a time when an increasing number of medical societies and other independent organizations are pushing for physicians to more closely scrutinize physician expert witness testimony though peer review. While the American Assn. of Neurological Surgeons has had a program for nearly 20 years, Florida, California, North Carolina and Washington are among states that have recently started to take a closer look.

"This is not an appropriate area for associations to police," said James F. McKenzie, a Pensacola, Fla., attorney who is representing Dr. Fullerton. "The only reason it is done is to intimidate witnesses."

But some doctors say professionals need to police their own and help keep frivolous lawsuits out of court, especially as medical liability insurance rates rise.

FMA's Associate General Counsel Jeff Scott said the expert witness testimony program of the FMA's Council on Ethical and Judicial Affairs doesn't defame doctors. He said it handles confidentiality similar to any peer review matter.

Although the association has not received a complaint about a defense's expert witness since the program started a couple of years ago, he said, the council would review a defense expert if asked to do so.

"We strive to have a mechanism where physicians who believe that there has been off-base testimony can go," Scott said. "It is an impartial body."

Findings for or against a non-FMA member are given to the complainant and the doctor whom the committee reviewed. Committee members can send the complaint and findings to the Florida Board of Medicine or censure, suspend or expel a physician when he or she is an FMA member.

Florida neurologist Jonathan B. Warach, MD -- who, along with Florida neurologist Pravinchandra C. Zala, MD, and internist Joseph O. Krebs, MD, were named in Dr. Fullerton's lawsuit -- said they did "absolutely nothing wrong" when they asked that Dr. Fullerton's testimony be reviewed.

"We're on the moral high ground," Dr. Warach said.

The case

Dr. Fullerton served as an expert witness for the plaintiff in a medical malpractice case against the three physicians. A Tampa jury found no negligence in the case, which involved an 82-year-old woman. The judge denied a motion for a new trial.

After that, Drs. Krebs, Warach and Zala in July 2003 sent a letter to the FMA asking that it review testimony of two experts for the plaintiffs. They said the experts "presented false testimony and false theories about stroke in the hope to prove negligent medical care" and questioned lines in the doctors' testimony. The letter said the doctors' "goal is to prevent the medical profession from being terrorized in the future by similar 'experts.' "

In his lawsuit, Dr. Fullerton, who this year received a California Physician of the Year award from Congress, said he had not "terrorized the medical profession, has no plans to terrorize the medical profession and is not, in any sense, a terrorist."

The lawsuit also says that the letter contains untrue statements about Dr. Fullerton that the FMA republished by distributing it to members of its expert witness testimony program. The FMA has not yet offered a peer-reviewed opinion on the case. The untrue statements will make it less likely that others will want to hire Dr. Fullerton as an expert witness, his lawsuit claims.

But he also raises the broader question of whether a state medical society should be allowed to review testimony or whether that should be left to the courts.

Who is best to judge?

American Medical Association policy says that medical expert testimony is equivalent to the practice of medicine and that it should be peer-reviewed. The AMA says that state medical societies should work with state medical boards on the issue.

At its meeting this month, the AMA further called for doctors to be honest in their testimony and for AMA members who serve as expert witnesses to sign an affirmation stating that their testimony will comply with AMA principles.

"It doesn't matter if you are testifying for the plaintiff or the defendant, you must tell the truth," said outgoing AMA President Donald J. Palmisano, MD. "The public is not served well with junk testimony." Dr. Palmisano said professionals need to self-regulate because they have the knowledge needed to do so.

It's something the AANS has practiced for nearly two decades and something it says at least one court has said is welcomed.

Neurosurgeon Ben Blackett, MD, chair of the AANS's Professional Conduct Committee, points to a 2001 federal appellate court ruling that said professional societies could discipline members' courtroom testimony. The ruling stemmed from a case in which an AANS member who faced a review sued the organization. The opinion stated that the court needed help in scrutinizing expert witnesses.

"Unfortunately, there are some physicians who for a large enough fee will say something that isn't true," Dr. Blackett said.

But John Vail, a lawyer for the Center for Constitutional Litigation and an attorney representing Dr. Fullerton, said the court already has mechanisms to weed out bad testimony. Lawyers don't want to put bad experts on the stand because the opposing counsel would tear them apart, he said.

"Cross-examination is an awfully powerful way of finding out the truth," Vail said.

Vail questions why medical society programs disproportionally review testimony of plaintiff experts if programs aren't designed to intimidate plaintiff witnesses.

Medical societies say they will review experts from either side. But they say they receive more complaints about plaintiff witnesses. For example, AANS has received only one complaint against a defense witness over the years, AANS attorney Russell M. Pelton said. "Either there is much worse testimony given on the plaintiffs' side or the plaintiffs' side doesn't want to spend the time to bring an action," he said.

Dr. Blackett added that the AANS committee has dismissed more than one-third of the approximately 50 cases it has been asked to review over the years, showing that the association is more than willing to dismiss complaints that don't have merit.

Pelton said it's up to individual association members to file complaints and that expert witness programs are not about intimidating plaintiff expert witnesses. "It's clear that the plaintiff bar is getting nervous about the fact that their witnesses are being scrutinized," he said.

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Case at a glance

Venue: Leon County (Fla.) Circuit Court
At issue: Whether three physicians' request for the Florida Medical Assn. to investigate another physician's expert witness testimony in a medical malpractice trial was defamatory.
Potential impact: Some say the lawsuit could end a program they believe is designed to intimidate physicians from testifying for plaintiffs; other physicians say the lawsuit has no merit and will show that doctors do have a responsibility to police expert witness testimony given on both sides of the courtroom.

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FSMB issues guidance

Fraudulent testimony given by medical expert witnesses should be considered unprofessional conduct by medical boards, according to a resolution passed by the Federation of State Medical Boards.

The organization's house of delegates in May approved a resolution that modified a federation guide. It now states that false, fraudulent or deceptive expert witness testimony by a physician should constitute unprofessional conduct. The guide is used to help states adopt new medical practice acts or amend existing laws.

"It considers fraudulent testimony to be unprofessional and something that could lead to licensure action," said Dale Austin, senior vice president and chief operating officer of the Texas-based federation.

In the past, boards have considered actions against doctors for expert testimony under more general disciplinary guidelines. The new resolution, proposed by the Pennsylvania State Board of Medicine, comes as some states are taking a closer look at such testimony.

Last year the North Carolina Medical Board suspended for one year the medical license of a neurosurgeon who served as an expert witness in a malpractice suit.

The California Medical Assn. said the Medical Board of California should discipline doctors who knowingly give misleading or false expert testimony. The association voiced concerns on witness testimony to the California Attorney General, who in April issued an opinion saying a physician who knowingly provides false or misleading expert testimony can be subject to discipline by the medical board.

--Damon Adams

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