Expert witness sues ophthalmology society

When Golden Valley, Minn., ophthalmologist Charles Yancey, MD, got a fax notifying him that the American Academy of Ophthalmology was going to review his expert testimony in a medical liability trial, the physician was shocked, his attorney said.

It was the first time Dr. Yancey had served as a medical expert witness, and "he felt an ethical obligation to step forward and do this," his lawyer, Michael A. Zimmer, said. But the fact that Dr. Yancey received the faxed letter the day before his deposition in a subsequent trial on damages in the case, "was clear evidence that this complaint was filed ... to try to get him to alter his testimony," said Zimmer, who practices in Minneapolis.

Now, Dr. Yancey is suing the Academy and the two doctors who filed a complaint against him for allegedly giving inaccurate testimony. Dr. Yancey claims all three conspired to defame and intimidate him so he wouldn't testify in other cases, according to the lawsuit filed in July.

But AAO General Counsel Katherine Salazar-Poss said the case is an effort to undermine the very process that members of the Academy agree to when they join, which is to ensure that doctors adhere to the same ethical standards in the courtroom as they would in the exam room.

"Our [expert testimony] rule recognizes that doctors, in all the various tasks they are called on to perform, often find themselves in the position of testifying in the courtroom," Salazar-Poss said. "All it says is that should be done in an objective manner."

She denied the allegations in the lawsuit and said the Academy's review program treats such grievances among its members confidentially and impartially. The AAO investigation against Dr. Yancey is ongoing.

The AAO is one of a number of professional medical societies that have processes allowing members to report questionable expert witness testimony to a review committee. The Florida Medical Assn., American Assn. of Neurological Surgeons and the American College of Obstetricians and Gynecologists are among those that have similar programs. American Medical Association policy states that medical expert testimony is akin to the practice of medicine and should be peer reviewed.

Physician questions fairness, motives

Dr. Yancey said the Academy violated its own procedures when it handled the complaint lodged against him by Hermantown, Minn., ophthalmologist Jeffrey R. Weis, MD, and Minneapolis ophthalmologist David R. Hardten, MD, in August 2006, court records show.

In March 2006, Dr. Yancey testified as a plaintiff expert in a medical liability case against Dr. Weis. A jury found in favor of the plaintiff, who alleged he was injured in a LASIK surgery that Dr. Weis performed on him. Dr. Weis denies any negligence. Later, the trial judge ordered a second trial to decide damages in the case. After that, Dr. Weis and his defense expert, Dr. Hardten, sent a letter to the Academy challenging Dr. Yancey's testimony.

But rather than send him the complaint only by Federal Express -- common practice for the AAO -- Dr. Yancey alleges the Academy, at the urging of Drs. Weis and Hardten, agreed to fax a notice of the challenge on Jan. 11 to make sure he received it before his deposition scheduled for the next day. The faxed letter was marked "personal and confidential" and noted that a copy of the complaint would be delivered by Federal Express on Jan. 12.

Dr. Yancey said the fax did not remain private, and the tactic distressed him and hurt his reputation. According to his lawsuit, Dr. Yancey claims that the AAO's expert review program was intended to have that effect and "[constrain] the free flow of information to the courts."

The AAO's Salazar-Poss disagreed with that allegation. She said physicians are the ones qualified to peer-review medical expert testimony, not the courts.

"If anything, [medical society review programs] are protecting the judicial system," she said. "It's not the courts saying what the standard of care is. It's based on what we hope to be honest and accurate testimony" by physician expert witnesses.

Drs. Weis and Hardten deny the allegations in Dr. Yancey's lawsuit, but their attorney declined to comment further due to the pending litigation. In court papers, the doctors said they filed their complaint in "[hopes] that any future testimony by [Dr. Yancey] in the Larson case or any other litigation, would be accurate, not misleading and in compliance with [AAO rules]."

But John Vail, vice president of the Center for Constitutional Litigation PC, a national law firm that challenges limits on plaintiffs' rights, and an attorney representing Dr. Yancey, said the courts already have mechanisms to weed out bad testimony, from cross-examination to tossing it out altogether. He said that expert testimony boils down to an opinion, not the practice of medicine.

"The Academy's peer review system is going to find that Dr. Yancey's opinion is wrong? ... It has nothing to do with laying hands on a patient and everything to do with doctors seeking to protect themselves from liability," Vail said.

No trial date is scheduled in Dr. Yancey's case. Meanwhile, he has asked the trial court to halt the Academy's investigation while his lawsuit is pending. A judge is scheduled to address the injunction request at an Oct. 25 hearing.