Halting Inappropriate Expert Witness Testimony — Part II: Efforts of State Medical Boards and State Medical Societies to Police 'Experts'

by Robert A. Bitterman, MD, JD, FACEP, Contributing Editor

Introduction

Last month we explored State Medical Society actions to rein in unethical or fraudulent testimony by medical experts in malpractice litigation.1 Civil defamation actions brought against the 'experts' by aggrieved physician defendants were largely unsuccessful, and professional discipline depended upon the state courts holding that expert witness testimony constituted the 'practice of medicine'.

This month we will address attempts by State Medical Boards to use their licensure powers to censure or fine physicians, suspend their medical license, or outright revoke their ability to practice medicine for providing unprofessional testimony. We'll also see, as the cases discussed will demonstrate, that it's a fractious task to pursue perceived unscrupulous experts and if the attack process isn't squeaky clean it can boomerang on the complaining physicians.

Dr. Lustgarten v. The North Carolina Medical Board

Dr. Gary Lustgarten, a Neurosurgeon from North Miami Beach, testified for the plaintiffs in the North Carolina case of Hardin v. Carolina Neurological Services, et al. At the time, he held both a Florida and North Carolina medical license. The North Carolina Board of Medicine, one of the more active medical boards in the country, revoked Dr. Lustgarten's state license for what it considered unprofessional conduct on the witness stand in the case. The Board concluded that he misrepresented the applicable standard of care and testified without a good faith basis that one of the neurosurgeon defendants had intentionally falsified the medical records.

Dr. Lustgarten appealed the Board's ruling in North Carolina state court. 2,3 The judge overturned the Board's decision on the misrepresentation of the standard of care, holding that Dr. Lustgarten was merely providing his opinions on the care provided by the defendants. However, the court affirmed the Board's ruling on the charge that the neurosurgeon engaged in unprofessional conduct when he repeatedly made factual assertions without any evidentiary or good faith basis regarding falsification of the medical records. Consequently, the Board retracted its revocation of the physician's medical license and instead suspended his license for one year. Dr. Lustgarten challenged the suspension to the North Carolina Court of Appeals.4

The appellate court first noted that NC legislature granted the Medical Board the authority regulate the practice of medicine and surgery for the benefit and protection of the people of North Carolina; and it agreed that the Board has the power to suspend or revoke the license of a physician who was reasonably found by the Board to have committed unprofessional conduct.5 The NC statute defines unprofessional conduct as failure to conform to the standards of prevailing medical practice, but also as "failure to conform to the ethics of the medical profession, irrespective of whether or not a patient is injured thereby, or the committing of any act contrary to honesty, justice, or good morals, whether the same is committed in the course of the physician's practice or otherwise, and whether committed within or without North Carolina."6

Thus, in North Carolina expert witness testimony constituted a form of the practice of medicine for which the physician could be subjected to peer-review and discipline, such as suspension or loss of licensure.

The court next scrutinized the Board's findings of fact and conclusions, as well as those of the lower court, to determine if they were reasonable under the circumstances and should be upheld by the appellate court.

The Board had concluded that Dr. Lustgarten engaged in unprofessional conduct because he had levied a groundless accusation when he testified that another doctor had falsified medical records to protect his associate. The specific misconduct charges against the expert witness included:

"Dr. Lustgarten testified in the absence of any corroborating evidence and in spite of evidence to the contrary, that a physician [the defendant] falsified medical records to protect his associate."

"Dr. Lustgarten testified under oath that Dr. X [the defendant], in order to somehow protect Dr. Y [his partner], falsified the procedure note …. Dr. Lustgarten had absolutely no direct evidence to support this extremely serious accusation."

The lower court upheld the Board's conclusion that Dr. Lustgarten had committed unprofessional conduct because "he repeatedly testified without an evidentiary or good faith basis that Dr. X [the defendant] had falsified medical records", and ruled that the suspension of Dr. Lustgarten's license was appropriate discipline for "testifying that Dr. X [the defendant] falsified medical records."2

Dr. Lustgarten's primary argument on appeal tracked the language of NC's governing statute, contending that the lower court should not have affirmed the Board's discipline order because there was no substantial record evidence that he accused the defendant physician of falsifying a medical record without a good faith evidentiary basis.6

The appellate court reviewed the physician's testimony and the record as a whole and agreed with Dr. Lustgarten. It first noted that "Dr. Lustgarten did not actually state that the defendant had "falsified" a medical record or use the terms "liar" or "lying" to describe the other physician or his conduct. Rather, these terms were introduced by the attorneys representing the defendant." On the contrary, Dr. Lustgarten had stated he had "difficulty believing" the defendant's notation in the records (that a shunt-dependent patient's intracranial pressure was not elevated at the time a second shunt catheter was inserted), and cited a host of clinical reasons for his skepticism concerning the notation, such as the CT scan results, mood changes in the patient, pain-medication-resistant headaches being experienced by the patient, and the lack of ventricular flow.4

The court stated the record was also clear that Dr. Lustgarten was content to state no more than his opinion that the defendant's note was faulty. The defense attorney, however, repeatedly asked Dr. Lustgarten whether the defendant was lying. Dr. Lustgarten didn't wish to answer this question, but he eventually stated that he was "not going to call [the defendant] a liar" but that, in his opinion, he had "tried to temporize his findings and write a note that was benevolent." Also, when the defense attorney persisted by asking whether Dr. Lustgarten was "accusing … [the defendant] of falsifying medical records," Dr. Lustgarten responded that the issue would have to be decided by a jury and again indicated that he had difficulty believing the physician's note.4

The court determined that the Dr. Lustgarten's observations and testimony demonstrated substantial evidence that Dr. Lustgarten had a good faith basis for his opinion that the defendant's notation was not credible, and for making the statements at trial for which the Medical Board seeks to impose discipline. The court could find no other evidence in the record to support the Board's decision.4

Thus, the appellate court held that the lower court judge erroneously affirmed the Board's determination, finding that the record as a whole did not permit an inference that Dr. Lustgarten made an entirely unfounded statement concerning the defendant's notes in the medical record. The court dismissed the charges against Dr. Lustgarten, reinstating his medical license in the state of North Carolina.4

Dr. Fullerton v. Florida Medical Association, et al

Dr. Fullerton was a California physician who testified against three Tampa area physicians in a Florida medical malpractice case. After winning the case, the defendants sent a complaint letter to the Florida Medical Association's (FMA) Expert Witness Committee (EWC), a part of the FMA's Council on Ethical and Judicial Affairs (CEJA)). In their letter they complained that Dr. Fullerton's testimony fell below reasonable professional standards, that it was made "for the sole purpose of propagating a frivolous lawsuit for financial gain," and that he specifically "presented false testimony and false theories about stroke." They asked the FMA to opine whether Dr. Fullerton's testimony was substandard, and, if so, to report its findings to the Florida Board of Medicine for appropriate disciplinary action in order "to prevent the Medical profession from being terrorized by similar experts."7

After publication of the letter Dr. Fullerton countered swiftly by suing the physicians and the FMA for defamation, tortious interference with an advantageous business relationship, conspiracy through abuse of economic power, witness intimidation, and violation of Florida's Racketeer Influenced and Corrupt Organizations Act (RICO).7

He claimed that the statements in the physician's letter were false and that the Expert Witness Committee was organized for the purpose "of intimidating, hindering, and deterring persons, including himself, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice," thereby depriving injured plaintiffs of the ability to pursue medical-malpractice lawsuits.7

Importantly, he pointed out that while he was licensed to practice medicine in both California and Florida, he was not a member of the FMA and it had no jurisdiction over him.

The defendants asked the court to dismiss Dr. Fullerton's suit on the grounds that it was barred by Florida and federal peer-review immunity statutes.8,9

Dr. Fullerton agreed that the FMA was a statutorily designated professional-review committee, but argued that the immunity statutes were enacted for the purpose of addressing the quality of health care provided by physicians when treating patients, and not designed to apply to expert-witness testimony.

The trial court sided with the defendants, ruling that the statutory immunity privileges provided in both Florida's law and the federal Health Care Quality Improvement Act (HCQIA) barred Dr. Fullerton's claims unless he could prove the defendants engaged in intentional fraud.7

However, the Florida appeals court overturned the trial court and reinstated Dr. Fullerton's lawsuit against the three physicians and the FMA. It held first, that testimony in a medical malpractice action was not the "practice of medicine", citing Florida's statutes which defines the practice of medicine as the "rendering of health services" including the "diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition".10 Dr. Fullerton didn't 'render' such services to a patient, and since his testimony wasn't considered the practice of medicine Dr. Fullerton was entitled to the long recognized common privilege of absolute civil immunity for testimony provided in connection in the course of a judicial proceeding.7

Second, since the appeals court judged that neither Florida's peer-review statutes nor the HCQIA clearly and unambiguously expressed legislative intent that such testimony should be scrutinized by peer review, it concluded the statutes provide no immunity to the three physicians. It also held that HCQIA provided "no immunity to the FMA in its role as an examiner of the quality of a non-member physician's judicial testimony".7

The courts ruling on the HCQIA was directly opposite that of the Kansas court in the case of Bundren v. Parriott11 (discussed last month), and also that of the Seventh Circuit Court of Appeals in Austin v. American Association of Neurological Surgeons, which did believe HCQIA authorized professional peer-review bodies to assess the quality of a physician's testimony given in a malpractice action.12 The court dismissed the Austin holding, noting particularly that "Dr. Fullerton, unlike Dr. Austin, was not a member of the professional association that entertained a complaint to discipline him". Thus, the court opined that "even if the immunity statues permitted peer-review of a member physician's malpractice testimony, the FMA had no cause under the circumstances to subject Dr. Fullerton to its discipline."7

Therefore, as warned in Part I of this article, if a physician makes defamatory comments against another physician outside the confines of the legal proceeding, where judicial privileges do not apply, that physician can be civilly liable for defamation.1

Testimony as the Practice of Medicine.

A physician can practice medicine without belonging to a State Medical Society or Professional Association, but not without a license from a State Board of Medicine. That's why the real fight on the tempering of expert witnesses is over whether or not providing testimony in malpractice cases is a form of the practice of medicine, and hence subject to peer-review by the state Board.13

The American Medical Association (AMA) is on record declaring that medical expert witness testimony constitutes the practice of medicine and should be subject to peer review.14 Furthermore, the Association actively encourages peer review and discipline for unprofessional or fraudulent testimony, and warns that it will assist professional bodies in punishing physicians who provide such testimony.15

The American College of Emergency Physicians (ACEP) also holds that medical expert witness testimony falls within the realm of the practice of emergency medicine, because it has demonstrated the potential to set standards of medical care, and would therefore be subject to accountability by appropriate licensing authorities.16

Most courts have agreed that expert witness testimony is a type of the practice of medicine.

In the case of Joseph v. District of Columbia Board of Medicine, the District of Columbia Court of Appeals affirmed the D.C. Board of Medicine's defining the "practice of medicine" to include the offering of expert witness testimony.17

Dr. Joseph, who specialized in emergency medicine and trauma, appeared as a plaintiff's expert in a South Carolina medical malpractice case and testified falsely that he was board-certified in thoracic surgery. He also provided other false information about his academic credentials. The Maryland Commission on Medical Discipline charged him with "immoral conduct" and with willfully making false reports or records in the practice of medicine.18 It reprimand and levied a civil fine against Dr. Joseph, which were upheld by a Court of Appeals.17

Dr. Joseph attempted to define the practice of medicine solely in terms of patient care. However, the Commission stated that it is the practice of medicine in Maryland when a "medical expert in a malpractice case is retained to give his/her opinion based on the patient's records as to the standard of care required, the standard of care given, and the damage caused to the patient by the medical care rendered by another physician."17 It equated such testimony given by a non-treating physician to be in the nature of giving a second opinion, and also requires that the witness be licensed to practice medicine in order to testify as an expert. The court noted that Dr. Joseph lied under oath in his capacity as a medical expert, about his own medical qualifications, in order to have his diagnosis accepted by the jury.17

In the case of Deatherage v. State v. Washington Examining Board of Psychology,19 Dr. Deatherage argued that his expert witness testimony fell within the scope of absolute witness immunity under state law. The Supreme Court of Washington agreed that he could not be held civilly liable for his unethical testimony, but that professional discipline was entirely appropriate, stating:

"Permitting a professional to be subject to discipline for unprofessional conduct…serves to advance the Court's goal of accurate testimony from expert witnesses, and further the disciplinary board's goal of protecting the public."19

Similarly, as mentioned in last month's article, the Seventh Circuit Court of Appeals in the case of Austin v. American Association of Neurological Surgeons also determined that physician testimony is a type of medical service subject to peer-review and discipline if found to be unethical or unprofessional.12

Jurisdiction

Assuming state and federal courts accept that expert witness testimony is the practice of medicine and subject to peer-review and sanctions by the state medical board, it is irrelevant if the expert is from out-of-state and doesn't have an in-state license subject to the jurisdiction of the board. In a number of states, most notably Florida, that is precisely the problem: the state medical board has no jurisdiction over physicians who testify in the state if they don't maintain a Florida license.

The Florida Medical Association has repeatedly lobbied the Florida legislature for a bill that would bring out-of-state physicians who testify in Florida under the jurisdiction of the Florida Board of Medicine. It has been equally repeatedly rebuffed by the legislature, most recently just late last year.

Other states have been more successful, such as Ohio, which recently enacted legislation which deems expert witnesses temporary licensed in Ohio and subject to the authority of the state medical board. Expert testimony determined by the State Medical Board to be false or completely without medical foundation would be considered "unprofessional conduct" and subject to discipline by the board."20

The American Medical Association encourages state medical societies to collaborate with their state licensing boards to provide out-of-state expert witnesses a temporary license (at no cost or for a nominal fee) for the express purpose of subjecting the expert's testimony to the Board's peer-review process.21

References

1. Bitterman RA. Halting Inappropriate Expert Witness Testimony — Part I: Professional Associations Efforts to Police 'Experts'. Emerg Depart Legal Letter. 2007;18(1):1-4.

2. Lustgarten v. North Carolina Medical Board, Wake County Superior Court (North Carolina) No. 02 CVS 12218, April 18, 2005.

3. N.C. Gen. Stat. § 150B-51(b) (2005).

4. In RE: Gary James Lustgarten, MD, 629 S.E.2d 886 (N.C. App. June 6, 2006).

5. N.C. Gen. Stat. § 90-2 (2005).

6. N.C. Gen. Stat. § 90-14(a)(6) (2005).

7. Fullerton v. Florida Medical Association, Fla. 1st District Court of Appeal, (July 2006).

8. Florida Statutes, Section 766.101 (2003).

9. The Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §§ 11101-11152.

10. Florida Statutes, Sections 458.305(3) and Section 766.101; emphasis in the original.

11. Bundren v. Parriott, US District Court for the District of Kansas, (June 2006).

12. Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001).

13. See for example, Feld AD & Carey WD. Expert Witness Malfeasance: How Should Specialty Societies Respond? The American Journal of Gastroenterology. 2005;100(5):991.; McHenry CR, Biffl WL, Chapman WC, & Spain DA.. Expert witness testimony: The problem and recommendations for oversight and reform. Surgery. 2005;137:274-278. (Position Paper of the Society of University Surgeons); Sullivan W. Expert Opinions: Defendants aren't the only ones on trial. Emergency Department Legal Letter. 2004;15(9):97-108.; Sacopulos MJ. Addressing False Expert Witness Testimony in Medical Malpractice Litigation. American Health Lawyers News. 2005;9(5):24-29.

14. AMA Policy H-265.993.

15. AMA Policies H-265.992 & H-265.994.

16. ACEP Policy Statement, Expert Witness Guidelines for the Specialty of Emergency Medicine, Policy #400114; Approved August 2000.

17. Joseph v District of Columbia Board of Medicine, 587 A2d 1085 (D.C. App. 1991).

18. See Maryland Health Occ. Code Ann. §§ 14-504(3) & (4) (1981).

19. Deatherage v State of Washington Examining Board of Psychology, 948 P2d 828 (Wash. 1997).

20. Ohio Statute R.C. 2323.421 (2004); See also Chapter 4731 of the Revised Code.

21. AMA Policy H-265.992.