How I Lost the Big One By Lawrence Lessig
The White Wall By Stephanie Mencimer
Call Forwarding By Nicholas Thompson
Down With Discretion By Michael S. Gerber
The White Wall
A new code of conduct is taking hold of the medical profession: First do no harmto your colleagues.
DR. GARY LUSTGARTEN, A FLORIDA NEUROSURGEON, testified in 1998 that mistakes by doctors in Fayetteville, N.C., led to the death of a 19-year-old patient, Michael Hardin. Hardin had depended on a shunt to drain fluid from his brain since he was a child, and the shunt became clogged. In 1995, he went to the Cape Fear Valley Medical Center for emergency surgery to have it repaired. Within hours of the surgery, he had a heart attack. He died 18 days later.
His mother sued the hospital and the surgeons who treated him. In the ensuing trial, Lustgarten stated that the repair did not clear the blockage, faulting the medical staff for not more closely monitoring the pressure on the young man's brain. Lustgarten suggested that Dr. Bruce Jaufmann, one of the surgeons, may have "falsified medical records to protect his associate" when he wrote that fluid did not spurt out of the shunt during surgery, which would have indicated too much pressure on the brain. The case settled for more than $2 million, and the family abandoned their claim against Jaufmann as part of the settlement. Four years later, though, a still-angry Jaufmann filed a complaint against Lustgarten with the North Carolina Medical Board, alleging that it was Lustgarten who had "testified falsely" at trial.
The North Carolina medical board rarely revokes the license of any doctor, much less one who has not hurt anyone or committed any criminal offense. In 2001 and 2002, the board allowed five physicians to continue practicing even after they were found to have compromised patient care, abused drugs, sexually abused patients, or engaged in violent behavior.
Lustgarten was not so lucky. In 2002, the board held a hearing without him or his attorney, as Lustgarten had been subpoenaed to testify in court in another state on the same day. On the strength of statements from Jaufmann, his lawyer, and another expert witness, the medical board charged Lustgarten with giving "disparaging, demeaning, or impertinent responses" on the stand and "totally unsubstantiated, inflammatory" testimony. It revoked Lustgarten's license, the first time that any state medical board revoked a doctor's license for giving court testimony.
Lustgarten's lawyer, Seth Cohen, argued that his client's testimony was not fraudulent and that it constituted protected free speech. He pointed out that Lustgarten hadn't been the only expert to testify that Hardin's doctor was negligent. And even if he was, Cohen added, "there will always be a battle of the experts" in malpractice cases. A state judge reversed five of the board's six claims against Lustgarten, and last November the board voted to suspend Lustgarten's license for a year rather than revoke it.
Medical malpractice trials involve competing accounts of expert witnesses. If doctors refuse to testify or are prevented from doing so for plaintiffs, lawsuits cannot go forward. In 14 states, a physician must verify that a lawsuit has merit before it can be filed, and it's nearly impossible in most other states to advance to trial without an expert. At the federal level, the Supreme Court in the 1993 Daubert v. Merrell Dow Pharmaceuticals case toughened the standards for judges vetting expert witness testimony. That rule, which has been adopted by most states, represented a major victory for the American Medical Association, which filed a brief in support of stricter controls on expert witnesses, arguing that judges weren't keeping "junk science" out of the courtroom.
As the medical establishment has made tort reformand restrictions on medical malpractice lawsuitsits top legislative priority, it has gone beyond seeking to limit who can testify as expert witnesses and taken steps to muzzle them altogether. Professional medical organizations have strongly discouraged members from testifying on behalf of plaintiffs. A new nonprofit organization, the Coalition and Center for Ethical Medical Testimony, or CCEMT, was set up to educate the public about what it terms "hired guns." The sum of these efforts is that doctors like Lustgarten are finding their careers on the line for taking the witness stand.
DOCTORS DON'T LIKE TO TESTIFY against their colleagues. They rely on each other for professional guidance and patient referrals, so speaking out against colleagues can cost them associates and impact their bottom line. But self-interest is not the only, or even primary, reason for their reticence. Many doctors believe that genuine malpractice is rare. In 1988, Harvard researchers found that most of the 47 physicians they polled were reluctant to label substandard care as negligent, and they generally didn't believe that victims of that inferior care deserved compensation. Expert witnesses willing to pass judgment on another doctor are therefore a scarce commodity, and they can charge a high price for their services. A good witness can earn as much as $750 an hour, plus travel expenses that can range from $2,000 to $10,000 a day.
Lawyers have a particularly hard time finding a doctor to testify against another doctor in the same town. The predicament led Barry Boughton, a retired Michigan attorney who now volunteers for the advocacy group Public Citizen, to use experts from the medical school faculty at the University of Michigan as witnesses. The faculty tended to be more outspoken because they were more insulated from peer pressure and often had to repair damage done by doctors getting sued. "Initially, they felt it was their obligation to speak out," Boughton said. But worried that in-state testimony could affect patient referrals from around the state, the university contemplated barring faculty from testifying in such cases, Boughton said. The school decided not to enact such a policy but, despite repeated calls, would not explain why.
Seeking to reduce litigation, the medical establishment has long tried to prevent doctors from testifying. In 1998, the AMA declared that testifying as an expert amounted to the practice of medicine and could be regulated by state medical boards. As a result, doctors can now be sanctioned for what they say in a courtroom. The AMA also encourages its members to report instances of allegedly fraudulent testimony to those boards. As a result, more and more medical societies have begun to sanction members with penalties like suspension or revocation of their society membership. They have focused their energies on doctors who aid plaintiffs' attorneys. As the American Society of Anesthesiologists newsletter declared in 2002, when it comes to doctors working as experts, "As a rule, defense work is good, and plaintiffs' work is bad." These professional penalties effectively control expert testimony, because few lawyers want to hire a doctor censured as a witness by his own professional organization. Yet there is scant evidence that doctors targeted by these organizations have lied on the stand.
One of the most active medical societies on this front is the American Association of Neurological Surgeons. Since AANS set up the nation's first professional conduct review board to examine expert testimony in 1983, it has reviewed the cases of some 50 physicians. It has stripped several doctors of their membership after they testified on behalf of plaintiffs in malpractice cases and suspended many others, including Lustgarten. Other groups are now following suit.
The medical societies have been emboldened by the case of Donald Austin, a Detroit neurologist. In a trial involving a plaintiff who had suffered a paralyzed vocal cord during cervical fusion surgery, Austin testified that "a majority of neurosurgeons" would agree that the surgeon had been careless. The jury disagreed with his conclusion and found for the defendant doctor, who later filed a complaint with AANS against Austin. The AANS suspended Austin for violating the society's conduct code by giving unethical testimony.
Austin sued the group, alleging that he had lost $150,000 in annual income from expert-witness fees as a result of the society's action, which he characterized as "revenge" for his testimony against a fellow neurosurgeon. The trial court dismissed the case on the grounds that the court didn't have the power to interfere with the internal operations of a private association. The Seventh Circuit Court of Appeals upheld the decision and endorsed the AANS's peer review system. "The Association had an interest . . . in Austin's not being able to use his membership to dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves," wrote Judge Richard Posner. "This kind of professional self-regulation rather furthers than impedes the cause of justice." The Supreme Court chose not to hear Austin's appeal.
Medical groups insist that their regulation of expert witnesses is motivated by science, but some of their actions suggest otherwise. Austin's attorneys, for instance, discovered that the AANS had never sanctioned a doctor who had testified for the defense. The group also has no mechanism for anyone outside the AANS to bring an ethics charge against a member. That means plaintiffs who believe their cases have been compromised by a deceptive witness for the defense cannot pursue the same kind of sanctions that the AANS has applied to plaintiffs' witnesses.
The Florida Medical Association openly discourages doctors from testifying on behalf of patients injured by doctors, telling members that their names will be posted in area hospitals if they appear as witnesses in malpractice cases. A director of the Florida College of Emergency Physicians has gone a step further, creating a website posting the names of doctors who testify. North Carolina will allow only doctors licensed in the state to give expert testimony. Medical groups in other states are pursuing similar provisions in order to block the flow of unfavorable out-of-state witnesses. Such rules could be devastating for injured patients. "It would make it virtually impossible to find an expert," said Boughton. Some doctors have also formed a new insurance company, Medical Justice, to provide resources for doctors to countersue other doctors and lawyers involved in lawsuits against them.
The CCEMT represents the latest and most aggressive attack on expert witnesses. It was founded last summer by Dr. A. Bernard Ackerman, a New York dermatologist who settled a medical malpractice case in 2000 for $2.7 million. Ackerman was accused of failing to correctly diagnose a biopsy slide as cancerous; the plaintiff, Lilly Dubin, died during the trial.
Despite conceding at trial that he did not review the entire slide, Ackerman launched a crusade to discredit four of the doctors who served as experts for Dubinand to appeal the verdict against him in the court of professional opinion. He sent off a flurry of missives to medical boards, prosecutors, professional societies, and the high-profile lawyer Alan Dershowitz. In those letters, he accused Dubin's expertsincluding Dr. DuPont Guerry IV, a world-renowned authority on melanoma at the University of Pennsylvania medical school who had been the plaintiff's oncologist, and Dr. Milton Okun, a clinical professor of pathology at Boston University School of Medicineof lying and engaging in "shockingly unethical behavior."
Ackerman's organization, the first to focus exclusively on expert witnesses, contends that courtrooms are rife with charlatans. Ackerman said that his own experience as an expert witness revealed to him that "many of my colleagues didn't just judge the truth, but lied outright." When pressed for examples of such frauds, he referred to a case in North Carolina where he alleges that a dermatologist falsely claimed that the standard of care had been breached. He insisted that the expert "is a scoundrel and everyone knows it" but refused to give out the name of the case, the doctor, the expert, or the lawyer involvedbecause Ackerman himself is a hired witness for the defense. He has also accused Okun, one of Dubin's experts, of lying in a second case involving one of Ackerman's protégées. Okun denied the charge and said of CCEMT: "It's a massive attempt by doctors to limit patients' rights."
PLAINTIFFS' LAWYERS AND INJURED PATIENTS are feeling the pinch. Last spring, for instance, Florida attorney Gary Friedman was about to go to trial in the case of Cristine Del Cueto, who was crippled at age 3 in 1995 during brain surgery at New York's Columbia Presbyterian Medical Center. His key expert witness was Dr. Robert Rand, a respected neuro-oncologist. Rand planned to testify that the neurosurgeon who operated on the toddler was negligent when he cut the main blood vessel to her brain during delicate surgery on her optic artery. But in March 2003, one month before the trial was slated to begin, Rand withdrew from the case.
The AANS had suspended Rand for a year for testifying on behalf of an 11-year-old boy in the Midwest who had been thrown from his scooter and died. Rand had stated that the doctor treating the little boy could have saved his life by administering cortisone, which would have reduced swelling in his brain. The doctor who was sued filed a complaint with AANS arguing that Rand was wrong, and the society agreed. According to Friedman, the group had sent Rand a letter instructing him "to discontinue expert testimony for the plaintiffs or risk membership." AANS denied that it sent such a letter.
Rand felt he had no choice but to withdraw from Del Cueto's case. Because the defendant was so well knownhe had trained many of the country's cadre of pediatric neurosurgeonsFriedman could not find a single doctor in the country or overseas who was both an expert and willing to testify. "Everything was ready to go, and then this organization came in and said no," said Cristine's father, Ricardo Del Cueto. "You start wondering, can my daughter ever get a fair trial? Is it worth it? You're kind of pushed down a path to settle." He settled for an undisclosed sum.
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