Expert medical witnesses face review, Lawyers say move intimidates doctors

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Expert medical witnesses face review

Lawyers say move intimidates doctors

Adam Liptak, New York Times

Sunday, July 6, 2003

©2003 San Francisco Chronicle | Feedback

 

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Feeling under siege by malpractice lawsuits, medical societies are setting up

tribunals to review the testimony of doctors who act as expert witnesses in

malpractice cases.

Doctors whose testimony does not pass muster can be suspended or expelled from

the societies.

Lawyers who represent those suing doctors in malpractice cases say such reviews

and the threat of sanctions are meant to intimidate witnesses. They say the mere

existence of the reviews has made it harder to find experts, whose testimony is

crucial in most malpractice trials.

The idea for the grievance review seems to have started with the American

Association of Neurological Surgeons, which has prevailed in three court battles

over their legality. Societies of obstetricians, gynecologists and spine doctors

followed, and societies of anesthesiologists and ear, nose and throat

specialists are expected to vote on establishing similar procedures this summer

and fall.

" There are probably another 10 that are studying it closely, " said Russell M.

Pelton, a lawyer in Chicago who represents the neurosurgeons' association.

The American Medical Association supports the moves, said Dr. Donald J.

Palmisano, the association's president-elect.

" The giving of expert testimony should be considered the practice of medicine,

and it should be the subject of peer review, " Palmisano said. " If someone comes

into court and gives junk science, we don't want fraudulent testimony in court. "

But the trend troubles plaintiffs' lawyers.

" Not only does this appear to be a form of intimidation of witnesses that

violates the federal Civil Rights Act, but this is a sort of restraint of trade

that could also be an antitrust violation, " said Robert Peck, the president of

the Center for Constitutional Litigation, which often represents the American

Trial Lawyers Association.

" It's extremely widespread, " Peck said. " It leads us to believe that many

doctors are afraid to come forward because they fear retaliation. "

Some lawyers say the effect of the grievance procedures is already being felt in

the legal system.

" It's more difficult to get a good neurosurgeon as an expert than any other

specialty, " said Norman D. Tucker, a Michigan lawyer who represents patients.

Dr. Albert L. Strunk, vice president for fellowship activities at the American

College of Obstetricians and Gynecologists, said he was not convinced that

review of expert testimony by medical societies would prevent poor- quality

testimony. The college has a grievance program that has heard occasional

complaints about such testimony.

" When a medical society disciplines one of its members for this sort of thing,

it just plays into the hands of the personal injury lawyers, " Strunk said. " They

say this is the medical profession closing ranks to stifle doctors who are

speaking out on behalf of a patient who has been injured. "

The neurosurgeons' association has heard more than 30 complaints over the past

20 years, all but one of them about expert testimony given on behalf of

plaintiffs, Pelton said. Only members of the society can file a grievance.

The hearings resemble trials, with witnesses and lawyers. They are usually

conducted during annual conventions. The doctor bringing the complaint must

prove " unprofessional conduct, not a difference of opinion between

professionals, " Pelton said. " Due process is observed. "

Plaintiffs' lawyers say that only testimony on behalf of plaintiffs seems to

land doctors in trouble. " They are not reviewing the highly outrageous testimony

they see from defendants' experts, " Tucker said.

©2003 San Francisco Chronicle | Feedback

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