Will Massachusetts court allow expert to be sued?

At issue in the case is the extent to which a medical expert witness is protected by state law.

By Tanya Albert amednews correspondent — Posted Oct. 4, 2004

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Massachusetts' highest court is set to decide just how much protection physician experts hired by the state to review another doctor's work will receive in the court system.

The Supreme Judicial Court of Massachusetts on Oct. 5 is scheduled to hear arguments in a case in which reviewed psychiatrist Kennard C. Kobrin, MD, claims that he should be allowed to sue hired expert doctor David R. Gastfriend, MD, an addiction medicine specialist who critiqued his work for the Board of Registration in Medicine.

A lower court threw out the lawsuit, saying that state laws protected Dr. Gastfriend from being sued. Dr. Kobrin has asked the state's highest court to allow him to go forward with the lawsuit, which alleges that Dr. Gastfriend is liable for, among other things, expert witness malpractice.

One side says a decision that prevents the lawsuit from advancing would unfairly leave reviewed physicians without legal recourse.

"There has to be some right of the person being accused to have redress," said George C. Deptula, the attorney representing Dr. Kobrin. "This plays into medicine being an art more than a science. Different people have different views."

The other side says a ruling from the Supreme Judicial Court of Massachusetts allowing the lawsuit to go forward would make it decidedly more difficult to find physicians willing to offer their expertise in peer review cases.

"The concern is if doctors have to defend these kinds of suits, it would be a deterrent to getting involved in disciplinary proceedings," said John A. Donovan III, one of the attorneys representing Dr. Gastfriend.

Deciding what standard applies

Dr. Gastfriend's original review for the board led to Dr. Kobrin's summary suspension. The suspension was later overturned after an administrative law judge and the medical board determined that there was a split in medical opinion on whether benzodiazepines should be prescribed to patients with a history of substance abuse.

Dr. Kobrin sued Dr. Gastfriend for expert witness malpractice and negligence, defamation, malicious prosecution and intentional interference with contractual relationships.

In Kobrin v. Gastfriend, Massachusetts' high court for the first time will decide what standards judges will use when they are deciding whether to allow a lawsuit to proceed against a hired physician expert. Dr. Kobrin believes that a law providing qualified immunity to those who assist the medical board "in good faith and without malice" should apply to the suit. He argues that under that law, he should be allowed to go forward with his lawsuit against Dr. Gastfriend because he alleges that Dr. Gastfriend didn't meet that standard.

"Dr. Gastfriend's investigation of Dr. Kobrin and his results and his actual submission of an affidavit was not 'in good faith' and included substantial factual misstatements, material falsehoods and unfounded expert opinions," Dr. Kobrin argues in his brief before the Supreme Judicial Court of Massachusetts.

He further argues in court records that Dr. Gastfriend was acting as a "paid investigator or consultant to support, with expert analysis, BORM's request to prosecute and suspend Dr. Kobrin's license summarily." And he says that should entitle Dr. Gastfriend to less immunity than he would be entitled to if he were to come forward on his own.

"He was not 'petitioning' the government in his own right, but was assisting the government's 'petition' by providing paid investigative services like a 'complaining' [expert] witness, a police or professional investigator gathering information for a prosecutor or a paid informant or hired gun," Dr. Kobrin argues to the high court.

Consequently, Deptula said allowing this case to go forward shouldn't be fundamentally different than the rationale applied to police cases.

"You can sue for false arrest," he said.

Applying anti-SLAPP

Dr. Gastfriend argues that the state's anti-SLAPP statute should apply. The statute is designed to prevent "strategic litigation against public participation." Under the statute, a defendant can get a lawsuit dismissed if the plaintiff's claims are based on defendant's actions that are part of being an expert witness in administrative and criminal proceedings.

Donovan said Dr. Gastfriend had met the anti-SLAPP standard to have the lawsuit dismissed.

He said Dr. Kobrin had filed his lawsuit against Dr. Gastfriend after the medical board proceedings were over and after Dr. Gastfriend had decided to give an expert opinion in a separate criminal case against Dr. Kobrin.

"It appeared to us that this was a way to chill Dr. Gastfriend's decision to participate," Donovan said.

The anti-SLAPP statute requires that the plaintiff -- in this case Dr. Kobrin -- prove that the defendant's opinion was "devoid of any reasonable factual support or any arguable basis in law" and that the defendant's action caused actual injury.

Dr. Kobrin argues that even if the anti-SLAPP measure were applied, he still met the burden of showing that the affidavit Dr. Gastfriend supplied was devoid of any reasonable factual support.

The Supreme Judicial Court of Massachusetts decided to take the case before an appeals court weighed in because of the precedent-setting nature of the appeal. It is expected to decide the disagreement before the end of the year.

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Case at a glance

Kennard C. Kobrin v. David R. Gastfriend

Venue: Supreme Judicial Court of Massachusetts
At issue: What standard applies in deciding whether a reviewed physician can go forward with a lawsuit against an expert doctor the state board of medicine hired to review the physician's work?
Potential impact: If the lawsuit cannot go forward, some say reviewed physicians do not have legal recourse when they believe they were falsely targeted. If the lawsuit is allowed to proceed, some say it will prevent physicians from serving as experts.

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