Expert witnesses face ethics charges from medical societies.

Gary Lustgarten was not the doctor who killed the patient. But he was the one who was punished.

After he testified in court that a 21-year-old's death was caused by medical negligence, Lustgarten, a prominent Miami neurosurgeon, found himself facing questions from another tribunal: the Professional Conduct Committee of the American Association of Neurological Surgeons (AANS). As a result of his expert medical testimony in the wrongful-death case, Lustgarten was charged with an ethics violation and, last fall, suspended from his own professional association for six months.

Now, the former U.S. Air Force flight surgeon and chief of neurosurgery at Miami's Parkway Regional Medical Center is awaiting another professional conduct hearing before the AANS. The current charge stems from Lustgarten's testimony in a medical-negligence case filed by the family of a 58-year-old woman who bled to death after a surgeon's instrument ripped into her abdominal aorta during an operation.

Lustgarten attributed the injury that caused the woman's death to negligence. His testimony was supported by another surgeon and by William Meacham, former chair of Vanderbilt University's department of neurological surgery and namesake of its neurosurgical society and a professorship. But the doctor who performed the fatal surgery, and ultimately won a defense verdict, accused Lustgarten of unprofessional conduct.

"I believe it is my duty to file a formal complaint against Lustgarten," the surgeon wrote in his complaint sent to the AANS. "I believe he made multiple flagrant misstatements about the neurosurgical standard of care during his deposition and testimony."

"I have never deceived anyone," said Lustgarten, whose first reaction to the allegation was disbelief. If he wants to fight the allegation, he must leave his South Florida practice to travel to an AANS hearing in Toronto, Canada.

Lustgarten is one of about two dozen doctors who have faced charges under AANS's Code of Ethics, which contains a section on testimony in professional-liability cases. The organization established ethics rules related to expert testimony about 18 years ago, said AANS attorney Russell Pelton, and those rules are now being proposed as a model for the American Medical Association (AMA).

In what appears to be a trend, medical associations throughout the country are adopting codes of ethics and issuing decisions allowing them to charge members with ethics violations related to their court testimony. The alleged violations can result in suspension and expulsion from prestigious medical societies. Further, the punishment must be reported to the National Practitioner Data Bank, established by Congress in 1986 in an attempt to improve health care by tracking incompetent doctors. Instead of weeding out the incompetent, critics say, the rules are fortifying a code of silence among doctors and making it more difficult to find qualified medical experts.

ATLA has opposed efforts by the AMA to establish a peer review policy on medical testimony. In 1999, ATLA president Mark Mandell sent a letter to AMA president Nancy Dickey urging the medical organization to reject a peer review system. "We believe that judges and juries are fully able to hear, weigh, and resolve medico-legal disputes," Mandell wrote.

ATLA was prepared to take action when such a system, touted as a model for the AMA, was implemented in Hillsborough County, Florida, according to ATLA's senior director for Legal Affairs and Policy Research, Robert S. Peck. ATLA had taken steps to initiate a lawsuit when the local medical society dropped the matter, Peck said.

AANS's rules limit expert witnesses to surgeons in active practice, and they prohibit contingency fees. "The neurosurgeon should champion what he/she believes to be the truth," according to the rules, "not the cause of one party or the other."

Surgeons charged with ethics-rule violations face censure, suspension, or expulsion from the organization.

"It's not designed to punish plaintiffs' experts," said Pelton. "The guidelines shouldn't be a problem for anyone who testifies accurately."

Pelton acknowledged, however, that of the 20 experts accused of violations under the AANS rules, all but one had testified on behalf of plaintiffs. The case against the sole defense witness was later dropped. Since the rules were adopted, Pelton said, only one member has been expelled for an ethics violation related to expert testimony. Four others were suspended, and six were sent letters of censure.

Societies charging their own members "certainly seems like a troubling trend," said Rebecca Epstein, an attorney for Trial Lawyers for Public Justice. "We feel strongly we can't tolerate a system that retaliates against doctors who are courageous enough to testify." The advocacy group is reviewing physicians' complaints and deciding whether to intervene in the doctors' cases. "This seems like systemized witness intimidation," Epstein said.

AANS is not the only medical association scrutinizing expert testimony. Following a report about the effects of malpractice liability on its members, the American College of Obstetricians and Gynecologists (ACOG) enacted rules related to expert testimony. Obstetricians, in particular, have been concerned about malpractice claims, according to the AMA's amicus brief to the U.S. Supreme Court in General Electric v. Joiner, a case that addressed admissibility of expert testimony. (522 U.S. 136 (1997).)

At least one case is pending against an ACOG member who testified against another physician in a birth-injury case. ACOG provided a copy of its committee's decision regarding its expert-testimony rules but did not respond to a request for further comment.

ACOG "considers unethical any expert testimony that is misleading because the witness does not have appropriate knowledge of the standard of care for the particular condition at the relevant time or because the witness knowingly misrepresents the standard of care relevant to the case," according to ACOG's Committee on Ethics in an April 1999 opinion.

ACOG advises its members "to distinguish between medical `maloccurence' and medical malpractice. Medical maloccurrence is defined as a bad outcome that is unrelated to the quality of care provided." The distinction between medical maloccurence and malpractice is key to liability. If malpractice occurs, the physician pays, but the cost of "maloccurence," according to ACOG, should be spread throughout society.

"They're trying to say that things just happen," said Gary Fox, chair of ATLA's Professional Negligence Section. "Malpractice is avoidable. Bad practice or malpractice shouldn't happen, and someone's responsible for it."

The ACOG rules are "problematic in many ways," said John Vail, ATLA's senior counsel for constitutional litigation. "If this kind of inhibition exists, we're less likely to get the kind of testimony we need to ensure that the court system works."

"It's a real threat to the system," said Fox. The threat of sanctions, coupled with ACOG bulletins regarding medical standards, could make the already arduous task of finding qualified expert witnesses even more difficult. "It's intimidation in its most basic form," Fox said.

The call for rules similar to ACOG's and AANS's, however, appears to be spreading throughout the medical community. The New York delegation of the AMA has passed a resolution urging the national organization to use the AANS rules as a model code of ethics for medical societies. The AMA's current policy emphasizes peer review of physicians' testimony and sanctions against doctors who give allegedly fraudulent testimony. The AMA policy "encourages each state medical society to work with its state licensing boards toward the development of effective disciplinary measures for physicians who provide fraudulent testimony."

The AMA also provides legal and advocacy support to organizations that are creating programs to discipline physicians for unprofessional conduct related to expert testimony. The AMA policy also urges state licensing boards to require that out-of-state expert witnesses be licensed on a case-by-case basis so their testimony will be subject to peer review.

Seventh Circuit to review AANS case

The question of whether a doctor can be suspended from a medical society for his or her testimony in a court case will soon be reviewed by a federal appeals court. The Seventh Circuit will review the AANS rules in an appeal filed by Donald Austin, a Detroit neurosurgeon who was suspended from the organization after 33 years of membership because of an ethics complaint filed by another member.

Austin is seeking a reversal of a U.S. district court order of summary judgment for the association. Judge Elaine Bucklo dismissed Austin's case in October, saying there was no evidence that Austin had been denied due process. (Austin v. American Association of Neurological Surgeons, 120 F. Supp. 2d 1151 (N.D. Ill. 2000).)

"In this state," Bucklo wrote, "the only bases for a court's power to interfere in the internal operations of a private association are violation of internal association rules, deprivation of due process, or bad faith. As far as Dr. Austin has shown, these are lacking, and so he loses as a matter of law."

In his appeal, Austin's lawyer claims the association's rules "intimidate, discourage, and punish members who provide admissible testimony as expert witnesses for plaintiffs in medical malpractice cases."

"It's inconceivable that this wouldn't have an intimidating effect on other doctors who are thinking of testifying for plaintiffs," said Austin's lawyer, Henry Krasnow. "The risk of being sanctioned only exists when you testify for the plaintiff, and the risk of being sanctioned can have devastating economic consequences."

The suspension by the AANS, the loss of an important professional credential, caused other lawyers to reject Austin as an expert witness and cost him "hundreds of thousands of dollars" in fees, Krasnow said.

But to Gary Lustgarten, the fight against the sanctions is more than a matter of money; it is a matter of personal integrity.

Lustgarten prides himself on being a doctor's doctor. He has a private practice with a full roster of patients and performs four to eight major surgeries a week. His father was a general practitioner for 50 years, and his brother and cousin are doctors. He followed his father's footsteps and devoted his life to the practice of medicine--earning scholarships, serving in the military, teaching students, and joining more than a dozen medical associations.

Lustgarten isn't exactly a plaintiff's hired gun. He has testified for defendants as well as plaintiffs in medical malpractice cases. Because of his impressive credentials, he frequently gets calls from plaintiff lawyers, but he rejects 14 out of 15 plaintiff cases.

"I do believe I fill a very necessary role in reviewing cases for both plaintiffs and defendants," Lustgarten said. "There's a genuine need for honest, well-qualified neurosurgeons to do this."

Thomas Malone, a veteran medical-negligence lawyer, supported Lustgarten's credibility as a witness. "Dr. Gary Lustgarten is one of the most thoroughly prepared, considerate, and competent expert witnesses I have ever encountered in my career," said Malone, who practices in Atlanta.

Yet the AANS has determined that Lustgarten--and not the surgeon who misrepresented himself as a board-certified neurosurgeon to the dead patient and her family--should face a disciplinary hearing.

So Lustgarten plans to fight. "I believe what I'm doing is right, and it is honest," he said.