Courts split on medical societies' role in policing expert witnesses

As associations increasingly scrutinize physician expert testimony, conflicting court decisions highlight the debate over whether this ensures quality or stifles dissent.

By Amy Lynn Sorrel — Posted Aug. 21, 2006

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Recent court rulings out of Kansas and Florida clash in their findings of whether state and federal peer review protections should apply to medical society programs that evaluate what expert witnesses say in medical liability cases.

The U.S. District Court for the District of Kansas in June said that the American College of Obstetricians and Gynecologists' grievance process for reporting questionable medical expert testimony is a "professional review action" under the federal Health Care Quality Improvement Act, and that complaints filed through the program are immune from lawsuits.

Conversely, in July, Florida's 1st District Court of Appeal unanimously held that state and federal immunity statutes do not clearly state that expert testimony should be subject to peer review. Therefore, the court said, the law does not protect the Florida Medical Assn. and three of its members from a defamation lawsuit filed by an expert witness under review.

Each decision hinged largely on the question of whether giving expert testimony falls under the definition of the practice of medicine. It's a question on which physicians have weighed in on both sides.

"We believe that testifying as a medical expert is the practice of medicine, and we believe that it should be regulated," said Florida internist Cecil B. Wilson, MD, chair of the AMA Board of Trustees.

Dr. Wilson said doctors are legally and ethically responsible for ensuring that expert testimony is honest and fair, and that professional review bodies "should have peer review protection when they are evaluating it for that reason."

The AMA/State Medical Societies Litigation Center filed a friend-of-the-court brief supporting the FMA's expert witness program, which evaluates complaints in a closed hearing similar to a peer review proceeding. The brief said that self-policing measures protect the health care system from unsound medical judgment and help prevent frivolous lawsuits.

The FMA is considering an appeal, associate general counsel Jeff Scott said. "Basically the court ignored the fact that the review of expert testimony helps improve the quality of health care," he said.

But some doctors say that medical society programs to review expert testimony are designed to intimidate physicians who testify for plaintiffs in medical liability cases.

"Expert testimony is an opinion, not the practice of medicine, and opinion has always been something that was not subject to punishment," said James C. Garland, a plaintiff attorney in the Kansas case. The courts have mechanisms to weed out bad testimony, he said. For example, lawyers can use cross-examination and judges can punish unethical witnesses by disqualifying them and fining them and the party they represent, Garland said.

John Vail, vice-president of the Washington, D.C.-based Center for Constitutional Litigation PC, a group that challenges tort reforms, and a plaintiff attorney in the Florida case, agrees. "You cannot ignore the powerful effect these programs have in dissuading people from testifying."

Peer review protection?

In their split decisions, the federal and state courts diverged on whether doctors' courtroom testimony should be subject to peer review and the protections that go along with it.

In the Kansas case, Bundren v. Parriott, Oklahoma ob-gyn and ACOG member J. Clark Bundren, MD, sued a fellow ACOG member, Kansas ob-gyn Joel E. Parriott, MD, for defamation. The lawsuit stems from a 2004 complaint Dr. Parriott filed with ACOG that alleged Dr. Bundren misrepresented medical facts in his deposition testimony against Dr. Parriott, an accusation Dr. Bundren denies.

U.S. District Judge J. Thomas Marten dismissed the lawsuit, finding that expert testimony is "a type of medical service within the meaning" of HCQIA, and that Dr. Parriott was not liable for submitting his complaint because it "addressed the plaintiff's professional conduct as an expert witness."

The decision is being appealed.

In Fullerton v. Florida Medical Assn., however, the Florida appeals court allowed California internist and geriatrician John Fullerton, MD, to sue the Florida Medical Assn. and three neurologists who alleged he presented "false testimony" in a medical malpractice trial in which they were exonerated. If the FMA's panel found Dr. Fullerton's testimony below standard, the doctors asked that he be reported to the state board of medicine.

But the appeals court concluded that because neither the state nor federal law "clearly and unambiguously expresses the legislative intent that such testimony should be scrutinized by peer review ... the statutes provide no immunity to the defendants."

A growing debate

These cases are two of a handful addressing the dispute over who can police expert testimony. The court opinions in Kansas and Florida both acknowledged the last significant decision on the issue -- a 2001 ruling from the 7th U.S. Court of Appeals. In that case, Austin v. American Assn. of Neurological Surgeons, judges said HCQIA authorizes professional review bodies to discipline physician testimony.

AANS has had an expert testimony review program for 23 years. The society's legal counsel, Russell M. Pelton, said he believes that the ruling will remain the precedent. "Doctors should have the right to file complaints against doctors they believe have given unethical testimony," Pelton said.

Kansas plaintiff attorney Garland, though, said he believes rulings like that in the Fullerton case will stand. He noted that some state medical boards, including those in Mississippi, North Carolina and Texas, have begun to take a closer look at expert testimony as well, and he pointed to a recent decision by a North Carolina appeals court that reversed the state medical board's revocation of a doctor's license after the board initially said the physician gave improper testimony as a medical expert.

"The courts are waking up to the idea that these medical [organizations] are seeking to destroy expert testimony. ... I believe the courts in the next few years are going to cut them off," Garland said.

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Dueling rulings

Two courts took different approaches to the question of whether the federal Health Care Quality Improvement Act and state peer review protections apply to medical society programs that evaluate physician expert witness testimony.

In his June 29 ruling in Bundren v. Parriott, Judge J. Thomas Marten, U.S. District Court for the District of Kansas, wrote:

"At least one court has found that expert witness testimony by a physician is a type of medical service within the meaning of the Act. In Austin v. [American] Assn. of Neurological Surgeons, the court held that 'although Dr. Austin did not treat the malpractice plaintiff for whom he testified, his testimony at her trial was a type of medical service. ... His discipline by the association therefore served an important public policy exemplified by the federal HCQIA. ...'

"Here the defendant's ACOG complaint addressed the plaintiff's professional conduct as an expert witness giving medical testimony. The ACOG grievance addressed professional matters, raised questions regarding the college's code of ethics, and could have resulted in the suspension or expulsion of the defendant. The court finds that the ACOG complaint falls within the scope and purpose of the HCQIA, and that as a result no action for damages may be maintained herein."

On July 11, Judge Richard W. Ervin III, Florida 1st District Court of Appeal, said, in Fullerton v. Florida Medical Assn.:

"In our judgment, because neither Florida's peer review statutes nor the HCQIA clearly and unambiguously expresses the legislative intent that such testimony should be scrutinized by peer review, we conclude that the statutes provide no immunity to the defendants. ...

"It appears from our examination of the [state and federal immunity] statutes that the term professional-review action, as it relates to a formal action decision of a review body to take or not take action, encompasses the review of the professional conduct of a physician that might affect his or her patient's health, with the result that his or her right to clinical privileges or membership in a professional society could be impacted. Nothing in the provisions of the [immunity statutes], however, expressly or reasonably implies the professional body is empowered to review the quality of a physician's testimony in a medical malpractice proceeding."

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Cases at a glance

Bundren v. Parriott; Fullerton v. Florida Medical Assn.

Venue: U.S. District Court for the District of Kansas; Florida 1st District Court of Appeal
At issue: Whether state and federal peer review statutes protect medical society programs that review and evaluate physician expert testimony in lawsuits. The federal court in Kansas said yes and dismissed a defamation lawsuit against a doctor who filed a complaint with the American College of Obstetricians and Gynecologists. The Florida state court said no and allowed a similar lawsuit against the Florida Medical Assn. to go forward.
Potential impact: Some doctors say the programs are designed to intimidate them from testifying for plaintiffs in medical liability cases and should not be protected. Other doctors say the medical profession needs to police expert testimony to prevent frivolous lawsuits and protect the health care system from unsound medical judgment.

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