Medical expert barred from Georgia court forever

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted Dec. 13, 2004.

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In a move that legal experts say is unlike any they've seen before, a Georgia judge has banned an expert witness from ever testifying in his courtroom because he said the testimony the physician gave was "conflicting, lacking in credibility and apparently untruthful."

The doctor denies the judge's allegations and is appealing the ruling.

The order comes at a time when some physicians are making a push to better police expert witness testimony as a way of limiting the number of meritless lawsuits being filed.

Legal experts say that federal judges have not allowed physician expert witnesses to appear in court in a specific case when their testimony appears to be "junk science."

That rule was established by a 1993 U.S. Supreme Court ruling in Daubert v. Merrell Dow Pharmaceuticals Inc.

But they say it's pretty unusual for a state judge to disallow information from an expert and outright ban the expert based on depositions and affidavits collected before the judge decided whether to dismiss the lawsuit.

"You don't see this very much," said Timothy H. Bendin, an Atlanta attorney representing one of the physicians named in the Georgia lawsuit.

Attorneys for those physicians say that Fulton County (Ga.) State Court Judge Craig L. Schwall Sr. was correct in dismissing the testimony of vascular surgeon Larry R. Williams, MD, given changes that were made to the testimony through what's called an errata sheet -- a paper a witness can file to make changes to testimony after it's been given.

"It is unusual to have errata sheets that change testimony," said Russell B. Davis, a Marietta, Ga., attorney who represented one of the physicians named in the lawsuit. "It's a case where he [the expert] probably should have said, 'I've given my deposition. I'm not going to change it."

Dr. Williams' attorney and the attorney who hired the physician as an expert for the plaintiff say the move to dismiss the testimony and ban Dr. Williams from the courtroom is outrageous. They say corrections made to the depositions were not substantial.

"There is nothing in the record to justify the conclusion," said Edward TM Garland, the lawyer representing Dr. Williams.

"Dr. Williams was 100% truthful. [During his career] he has testified for both the plaintiff and the defense equally," Garland said.

Dr. Williams has filed court documents asking Schwall to change his mind about the order. At press time, a hearing date had not been set on that issue.

"The order is unfair and abusive," Garland said.

A question of notification

Dr. Williams was a plaintiff's expert witness in a medical malpractice lawsuit in which a man claimed that doctors ultimately had to amputate part of his leg because the standard of care wasn't met following coronary bypass surgery.

According to court records, doctors at Piedmont Hospital in Atlanta performed coronary bypass surgery on Leon Whitley on March 12, 1996, and inserted an intra-aortic balloon pump in his right femoral artery.

A catheter in the right artery can reduce blood supply to the right leg, and some blood flow reduction is expected, court records show. Piedmont Hospital officials, in court records, said that nurses closely monitored Whitley's leg, checked for pulses in the man's right foot and regularly looked at the foot's appearance, temperature and color. Whitley had blood flow to his leg while the balloon pump was in place, the hospital said, and the nurses and physicians never saw any signs of restricted blood flow.

Doctors removed the balloon pump on March 14, 1996, according to the records. It was at that point that physicians determined that Whitley was developing compartment syndrome, court records show. Whitley underwent several surgeries, but his right lower leg eventually had to be amputated.

After the surgery, Whitley and his wife sued Piedmont Hospital, several physician groups and individual physicians claiming that nurses did not notify Whitley's physicians about the changes in his condition and that someone at the hospital altered his medical record.

Whitley argued that if nurses had notified physicians about changes in his condition between 7 p.m. March 12 and 7 a.m. March 13, his leg likely wouldn't have had to be amputated.

The hospital argued that physicians were fully aware of Whitley's condition and that they independently decided that medical intervention wasn't necessary during that time.

In October, the judge dismissed the case against the hospital, physicians and physician groups who were involved. There are many questions and appeals swirling around the case, but the judge's decision to ban an expert witness is of particular interest to physicians.

"I don't necessarily have qualms with the idea of a judge saying that an expert is giving an invalid opinion, but to go to this extreme over minor changes is absurd," said James W. Howard, the Tucker, Ga., attorney representing the Whitleys. "It's difficult enough to get someone to testify against another physician. The intent of this is to make it more difficult."

At issue

In his written opinion, Schwall said that Dr. Williams in three expert affidavits gave an opinion that the alleged negligence of the nurses caused or contributed to the need to amputate Whitley's leg.

But the judge said that in two depositions given after the affidavits were filed, the physician didn't back the allegation that there was a link between the nurses' actions and the injury. After the two affidavits and two depositions, Dr. Williams filed a third affidavit in which, according to the judge, Dr. Williams again stated the link between negligence and the injury.

"Dr. Williams repeatedly agreed that Mr. Whitley's physicians were fully aware of Mr. Whitley's condition during the critical time period at issue, that additional medical interventions likely would not have been ordered even if additional communication between the nurses and physicians had occurred and that none of the alleged deviations from the standard of care by the hospital nursing staff caused any injury to Mr. Whitley," Schwall wrote.

Instead of just dismissing the case against the hospital, the judge went a step further, saying that he was "troubled by the fact that Dr. Williams has offered testimony ... by three separate affidavits and two separate depositions." Schwall also said that he believed that the testimony was "conflicting, lacking in credibility and apparently untruthful."

The judge pointed to changes that were made in Dr. Williams' testimony through the errata sheet. Schwall, who also said the plaintiffs' lawyers played a role in the changed testimony, said that four deletions or additions were made in areas that were damaging to Whitley's case.

"Dr. Williams does not remember whether he conceived the changes to his testimony or whether they were suggested to him by plaintiffs' counsel," Schwall wrote, "but he knows that he was never sent a blank errata sheet and that he did not make any changes or edits to the typewritten errata sheet sent to him by plaintiffs' counsel."

In the final page of the 27-page order dismissing the case, Schwall said that Dr. Williams couldn't appear as an expert witness in any case assigned to the same division of the Fulton County Court.

Howard said that neither he nor Dr. Williams did anything wrong and has appealed the ruling. He is also asking the court to appoint a new judge to hear the case because he believes that Schwall has a conflict of interest in the case that led him to dismiss it. Howard said that, among other things, the judge and his family receive care at Piedmont Hospital and that a cardiologist who is a member of one of the groups named in the lawsuit treated the judge. Schwall has denied that he has any pecuniary interest in the case's outcome. In court records Schwall said that he did not personally know or recognize any of the plaintiffs or defendants involved.

Howard said there is no reason for the judge to have ruled the way he did on Dr. Williams' testimony. "In a 203-page deposition, there were four corrections," Howard said. "The discrepancies in his testimony are minor."

Garland, Dr. Williams' lawyer, said once Schwall talks to Dr. Williams about the testimony, the judge will change his order.

"It's a completely illegal order," Garland said. "I expect the judge will change his mind."

If the judge doesn't change his mind, it would be a blemish on Dr. Williams' record that would likely be brought up anytime he testified in court. Some say that's unfair, particularly given the facts of the case. Others say it could set an interesting example for others to use when experts appear in their courtroom.

Either way, physicians who testify as expert witnesses and those who are pushing for better policing of expert witness testimony will watch the case closely to see how the issue is ultimately resolved.

Tanya Albert amednews correspondent—

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