Scared silent: the clash between malpractice lawsuits & expert testimony - Health Law

Physician Executive, July-August, 2003 by Maureen Glabman

Florida neurosurgeon Gary Lustgarten is a former college wrestler in a fight for his professional life. And the outcome of his battle could affect every practicing U.S. physician, directly or indirectly.

Lustgarten, 62, who earns substantial side income testifying as an expert witness, last year lost one of his three medical licenses for "inappropriate" testimony on behalf of a patient's family in a medical malpractice case. His two remaining licenses are in jeopardy now since revocation by one state board often encourages reciprocal actions by other state boards. He is appealing.

"I didn't wrestle for nothing. They picked on the wrong guy," Lustgarten says.

Typically, licenses are withdrawn for multiple malpractice judgments, prescribing violations, substance abuse and sexual misconduct, according to Dale Austin, chief operations officer of the Texas-based Federation of State Medical Boards.

Trial lawyers believe Lustgarten's situation is the first instance of a revocation for expert testimony in a malpractice case and it could set a precedent.

Lustgarten has practiced for 30 years in North Miami Beach and holds licenses in Florida, North Carolina and Maine. He once considered opening offices in the two latter states. It was in North Carolina where his troubles began.

The North Carolina Medical Board revoked his inactive license last August for testimony he gave in that state. The neurosurgeon protested and the revocation was stayed in October.

A North Carolina Superior Court judge in April ruled in favor of both the physician and the board on certain matters. Both the board and Lustgarten now say they will appeal the decision to the North Carolina Court of Appeals.

The board claims Lustgarten's testimony in the malpractice case was "invented facts," was "totally unsubstantiated, inflammatory" and "could not possibly have been made in good faith."

Lustgarten says he did nothing wrong and that the board's action is a "vendetta against plaintiffs' witnesses."

Fringe science and fraud

Medical and legal observers are watching the case closely because of its broad implications. Stunned lawyers are fearful that if the revocation stands, it will encourage other state boards to discipline similarly, scaring medical experts silent.

Expert testimony is generally required to establish negligence in malpractice cases in 44 states and the District of Columbia, according to the American Medical Association.

Physicians who testify in cases other than medical malpractice--such as patient slip and falls, worker compensation, child abuse, criminal and product liability--may also be affected.

"It would have a big chilling effect. What doctor would take a chance testifying and having their license revoked?" says Lustgarten's attorney, Seth Cohen, of Greensboro, N.C.

Moreover, case review provides moonlighting income to many physicians who earn $250 to $500 hourly. Lustgarten, who has performed chart review for 23 years, realized an estimated $75,000-150,000 annually as an expert witness in recent years.

Medical boards, state medical associations and medical specialty societies have a growing collective interest in punishing physicians who attest to indefensible fictions under oath. It is these experts who are responsible for the filing of frivolous claims, the surge in malpractice premiums and a spike in malpractice jury awards, say malpractice attorneys for defendant physicians.

George Indest, a Florida health care attorney and professor of health law at Barry University School of Law in Orlando, estimates at least 10 percent of expert testimony he has encountered involves fringe science or outright fraud.

Indest cites the example of an expert who signed a suit affidavit certifying professional negligence, even though the expert had never asked for, received or reviewed the patient's medical records.

Both plaintiff and defense experts may be guilty. "I've seen defense experts give the most amazing false testimony," says Barry Nace, JD, a Washington, D.C., malpractice plaintiff attorney who is former president of the Association of Trial Lawyers of America (ATLA). "If (boards) are going to start disciplining plaintiffs experts, they better be prepared to review defense witnesses."

Weeding out bad experts, sometimes called "hired guns" for their willingness to testify to anything for a fee, is not so easy. "Subjecting doctors to the threat of sanction for their statements under oath would conceivably intimidate good practitioners as much as bad ones," writes Michael Victoroff, MD, in Managed Care magazine, September 2002.

Lawyers brought in their biggest guns to assist Lustgarten's private attorney. ATLA attorneys agreed to work pro bono in helping to appeal the revocation.

"[The Lustgarten case] raises profound constitutional issues, such as the stifling of free speech," says ATLA attorney John Vail, who has assisted with strategy. "It's witness intimidation, if not in intent, then clearly by effect."

Expert testimony vs. free speech

Lustgarten came under scrutiny of the North Carolina Medical Board after a complaint about his testimony in a 1998 medical malpractice case. Lustgarten testified against two Fayetteville, N.C., neurosurgeons and the Cape Fear Valley Medical Center on behalf of the parents of Michael Hardin, a college student.