Doctor sues to fight for rights of whistle-blowers

A physician in California physician recently sued the Florida Medical Association (FMA) in Tallahassee and three other doctors in an effort to fight what he says is an attempt to discourage doctors from testifying against others in medical malpractice suits. His attorney tells Healthcare Risk Management that the "peer review" programs sometimes promoted to discourage hired guns in malpractice cases really amount to witness intimidation.

John Fullerton, MD, of San Francisco, accuses the defendants with abusing economic power and with using the FMA for a corrupt purpose. He is seeking damages for defamation and an injunction that would stop the FMA’s recent efforts to subject courtroom testimony to "peer review."

A case in Tampa

A Florida native, Fullerton filed the lawsuit after testifying for a plaintiff in a medical malpractice case in Tampa. The jury returned a verdict in favor of the defendants, but the three physician defendants complained to the FMA with a letter alleging that he committed perjury and manipulated testimony for personal gain. They asked that Fullerton’s testimony be reviewed by the FMA’s "peer review" program.

John Vail, JD, Fullerton’s attorney and a representative of the Center for Constitutional Litigation in Washington, says the physician sued because he felt besmirched by the attacks on his credibility. Vail says. "John Fullerton is a good doctor and a good citizen, and the allegations made against him are outrageous."

An FMA official says the charges are baseless and the group fully expects to prevail in this matter. Jeff Scott, JD, FMA’s associate general counsel, says the FMA’s peer review system merely is a way to review comments from concerned physicians and that the information they provide "may be valid and it may be improper, false, or fraudulent. We’re merely looking at the information as you would in any peer review system."

Expert review

According to Vail, two independent experts have reviewed Fullerton’s testimony and pronounced it scientifically sound. The FMA created its peer review program after the American Medical Association (AMA), with the urging of Florida physicians, adopted resolutions endorsing such programs, to be modeled on a program run by the American Association of Neurological Surgeons (AANS).

"You won’t see witness intimidation in any of the documents creating these programs," Vail says. "But when the AMA passed the resolutions, the AANS had reviewed approximately 40 cases, all of them involving witnesses who testified in favor of plaintiffs. Not a single case of bad testimony in favor of a doctor. Do the math."

The FMA, a private organization, allows physicians to make complaints about other physicians, regardless of whether the other physicians are members of the FMA. Fullerton is not.

Once a complaint is made, other physicians review it. "Amazingly, the FMA program has no standards by which you can judge what testimony will be found lacking," he says. "Doctors huddle, and if they don’t like what you’ve said, you get the medical equivalent of a scarlet letter."