Florida doctor indicted over expert qualifications

In a rare case, a Florida physician is facing criminal charges for allegedly lying about his qualifications when he testified as a medical expert witness in a medical liability case in Michigan.

The U.S. Attorney for the Eastern District of Michigan filed perjury and fraud charges against Miami cardiovascular surgeon Alex Zakharia, MD, accusing the doctor of knowingly inflating his surgical experience during a deposition for a plaintiff.

The federal government was defending the medical liability lawsuit, in which the Dept. of Veteran Affairs was sued for alleged inadequate medical care during a coronary artery bypass graft surgery.

The criminal indictment that stemmed from the underlying lawsuit accuses the plaintiff's expert Dr. Zakharia of falsely testifying that he was the lead surgeon in an average of 10 to 12 coronary bypass graft procedures per year in the 6 years leading up to the case. Hospital records the government obtained showed that he hadn't done any, according to court records.

U.S. Attorney Stephen J. Murphy, in a statement, called the physician's conduct "an abuse" of the legal system. "Those who hold themselves out as 'experts' offering testimony in legal proceedings must respect the system as well as their profession by telling the truth," he said.

Murphy's office declined to comment further. Dr. Zakharia and his attorney did not return calls for comment. Dr. Zakharia denied the allegations in a Miami Herald report.

Legal and medical experts say criminal charges against an expert witness are extremely rare in medical liability cases. Because perjury is difficult to prove -- especially when it comes to a medical opinion -- criminal prosecution is not always a viable recourse, according to legal experts.

Some doctors say the move sends a message that will help keep untruthful testimony that could mislead a jury out of the courtroom.

"Providing false testimony under oath is a crime, and if brought to a judge's attention during proceedings, there are remedies," said Michigan State Medical Society legal counsel Daniel J. Schulte."But if it's discovered too late, criminal prosecution or some type of disciplinary or peer review proceeding are the only other avenues."

Murray Sagsveen, general counsel to the American Academy of Neurology, which has an expert witness testimony peer review program, said that perjury charges are appropriate if an expert witness is found leading the judicial process astray. The Michigan case "sets an example and reminds all experts that they had better be careful about stating their qualifications and their testimony," he said.

Two views on regulating testimony

Doctors say the medical profession should be involved in policing expert testimony to hold witnesses accountable for what they say and prevent unqualified experts from entering a courtroom in the first place.

American Medical Association policy states that providing expert witness testimony is the practice of medicine and should be regulated.

Most states, including Florida and Michigan, have laws or regulations requiring medical experts to have background, training and experience in the same realm of expertise as the alleged negligence in the case.

However, out-of-state doctors are often called upon to testify in medical liability cases, making it difficult to verify their qualifications and discipline them across state lines when fraud occurs, said Jeff Scott, associate general counsel to the Florida Medical Assn.

The FMA and the MSMS last year were defeated in their pushes for legislation in their respective states that would define the provision of expert witness testimony as the practice of medicine and open the door for the state medical board to take punitive action against a physician. The laws would have required an out-of-state doctor to get a temporary license before testifying so that the physician could be banned from coming back if he or she gave baseless opinions.

Similar measures have received mixed reviews in the courts. The South Carolina Supreme Court last August blocked the state medical board from enforcing a licensing requirement statute, saying it could interfere with the judicial process. Other courts have taken opposite positions on whether medical societies should be able to peer review their colleagues who testify about the standard of care. For example, a Florida appeals court in July 2006 ruled that neither state nor federal peer review statutes clearly address whether expert testimony should be subject to professional scrutiny. A Kansas federal court a month earlier concluded that expert testimony is the practice of medicine subject to peer review.

The AAN's Sagsveen said, "the courts are not investigative bodies, and when a judge is listening to testimony, he doesn't know if that person is telling the truth or not."

In the Michigan case, for example, defense cross-examination was not enough to clarify Dr. Zakharia's credentials until the U.S. attorney looked into it after the fact, Sagsveen said.

But trial lawyers said that the judicial system is a good expert witness gatekeeper, and that there are only isolated incidents of outright fraud.

"What this case shows is clearly there are other opportunities consistent with our court system to ensure that witnesses testify truthfully," said Frank M. Petosa, president-elect of the Florida Justice Assn.

If an expert gives questionable testimony, the court can exclude the opinion and sanction the medical expert and the party that he or she represents, Petosa said. The court also can initiate an investigation on its own or at the request of a party, if perjury or fraud is suspected, he said.

By adding more layers of scrutiny, doctors are attempting to discourage their peers from testifying against them in negligence cases, and prevent injured patients from having their day in court, Michigan Trial Lawyers Assn. spokesman C. Jesse Green said.

"We already have incredibly high barriers to expert testimony in addition to the very high bars for bringing medical liability claims," he said.

Additional policing by the medical profession "is a back door way to extinguish those who will testify as medical experts."