Expert witnesses win their day in court against medical groups.

In two recent decisions, expert medical witnesses who were criticized--and, in one case, sanctioned--by professional medical societies for their testimony against other doctors have won court battles.

In June, the North Carolina Court of Appeals reversed an earlier judgment against neurosurgeon Gary Lustgarten, whose medical license had been suspended by the North Carolina Medical Board. (In re Gary James Lustgarten, 629 S.E.2d 886 (N.C. Ct. App. 2006).) A month later, a Florida appeals court allowed an expert medical witness to sue doctors and a medical association that claimed immunity for what the witness said was defamatory criticism of his testimony. (Fullerton v. Fla. Med. Ass'n, Nos. 1D05-0185 & 1D05-3632, 2006 WL 1888545 (Fla. Dist. Ct. App. July 11, 2006).)

After Lustgarten's testimony in a 1998 medical malpractice case, one of the defendant doctors complained to the state medical board. The board investigated and charged Lustgarten with engaging in unprofessional conduct, saying he had misrepresented the standard of care and had claimed, without evidence, that one of the defendants, Dr. Bruce Jaufmann, had falsified a medical record. The board revoked Lustgarten's license.

Lustgarten appealed the decision to a trial court. It reversed in part, noting that he could not be disciplined for his testimony-regarding the standard of care but finding that he had engaged in unprofessional conduct in his statements about the allegedly falsified notes. The court remanded the case, and the board suspended his license for a year.

But the appeals court reversed, citing parts of Lustgarten's deposition and cross-examination in determining that "the substantial record evidence does not permit an inference that Dr. Lustgarten made an entirely unfounded statement concerning Dr. Jaufmann's notes."

Instead, the court said, Lustgarten merely "stated under oath that he had 'difficulty believing'" Jaufmann's notations. The court went on to say that "at no point did Dr. Lustgarten actually state that Dr. Jaufmann had 'falsified' a medical record or use the terms 'liar' or 'lying' to describe Dr. Jaufmann or his conduct. Rather, these terms were introduced by defense attorneys."

The court ordered the lower court to dismiss the disciplinary charges against Lustgarten. The medical board has decided not to appeal the ruling.

"The doctor who got mad at Lustgarten was going through the back door," said Seth Cohen, a Greensboro, North Carolina, attorney who represented Lustgarten in the appeals court. "He couldn't file a defamation suit against him or a malpractice suit, so he just went to the medical board to get his license revoked, which is the worse sanction because it's not just money, it's his livelihood."

Indeed, said Cohen, the evidence against Lustgarten was minimal.

"When you read his deposition from the underlying malpractice case, it's 8 or 10 pages' worth of very detailed discussion of why he said what he said. And the only thing he said was that he didn't agree with Jaufmann's notes. So I spent my whole time in oral argument talking about the reasons Lustgarten had for giving this opinion, that it was not just a statement but an opinion based on the evidence he had before him. I could see that the court was taking it seriously. It appeared to me that the panel was upset that the medical board had done this to a doctor when it was clearly just his opinion."

The decision is encouraging for medical malpractice plaintiffs who need experts willing to testify against negligent doctors, Cohen said, adding that the risk of professional sanction could discourage many medical experts from testifying. "The people who are making the doctors and the insurance companies mad are the doctors who are brave enough to testify against other doctors, and those are the plaintiffs' experts," he said.

The Florida case involved internist John Fullerton, who testified for the plaintiff in a medical malpractice case. The defendant doctors later wrote to the Florida Medical Association, complaining that Fullerton's testimony was unprofessional, false, and given solely to advance a "frivolous lawsuit." The association's expert witness committee handled their complaints.

Fullerton sued the doctors and the association for defamation and witness intimidation, alleging that their allegations would harm his reputation and work as an expert witness. He also claimed the review committee discouraged expert witnesses from giving legitimate testimony for plaintiffs.

A trial court determined that the defendants were immunized from liability by a Florida statute covering medical peer review as well as by the federal Health Care Quality Improvement Act (HCQIA). But the appeals court disagreed, holding that "because neither Florida's peer-review statutes nor the HCQIA clearly and unambiguously expresses the legislative intent that such testimony should be scrutinized by peer review, we conclude the statutes provide no immunity to the defendants."

The court also noted that if peer review of testimony was meant to improve health care--as the defense argued was one of the Florida legislation's goals--then "the legislature failed to express its intention with the clarity one would reasonably expect it to use in bringing about such a substantial change to the privilege traditionally accorded witness testimony.... The common law has long recognized that an absolute civil privilege extends to a witness's testimony in connection with or in the course of an existing judicial proceeding."

In fact, the court said, the Florida statute "was expressly created for the purpose of evaluating and improving the quality of health care rendered by providers of health service." The court determined that "a physician who renders a medical service is ordinarily considered to be providing medical care to his or her patient" and that Fullerton was not doing so in this case. The court found a similar limitation on peer review of testimony in the HCQIA.

The decision stands in contrast to a Seventh Circuit ruling in Austin v. American Association of Neurological Surgeons (AANS). (253 E3d 967 (7th Cir. 2001).) Donald Austin sued AANS after the organization sanctioned him for testimony he gave on behalf of a medical malpractice plaintiff. The Seventh Circuit found that the HCQIA supported the sanction and immunized the association.

The Florida appeals court distinguished Fullerton from Austin by noting that Fullerton was not a member of the Florida Medical Association and thus the organization had no authority to discipline him.

Fullerton's attorney, John Vail of the Washington, D.C.-based Center for Constitutional Litigation, said the court recognized that "talking about practicing medicine is not practicing medicine." Vail also represents an anonymous doctor in a similar case in Texas. (Doe v. Tex. Med. Bd., No. D-1-GN-06000427 (Tex., Travis County Dist. Ct. filed Feb. 8, 2006).)

For Cohen, such cases clearly highlight a problem for expert medical witnesses--and, ultimately, for plaintiffs in medical negligence cases.

"The question is: If you're a doctor and making a good living, are you going to take a chance of losing the right to practice medicine so you can testify against a doctor who you think made a mistake? Nobody would do that."