Scared silent: the clash between malpractice lawsuits & expert testimony. (Health Law).

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Typically, licenses are withdrawn for multiple malpractice judgments, prescribing violations, substance abuse and sexual misconduct, according to Dale Austin, chief operations officer of the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.

Hardin had worn a shunt since he was three months old to drain brain fluid. The shunt sometimes failed, causing fluid to build up to potentially dangerous levels. Several surgeries were required to repair it. One operation in 1995 led to complications and Hardin died.

Hardin's parents felt their son was treated improperly. Their lawyer sent records to Lustgarten, who said the hospital and treating doctors failed to meet the standard of care. Cape Fear Valley Medical Center and the lead doctor settled for about $2.4 million during trial, according to published reports.

But a complaint was filed against Lustgarten with the North Carolina Medical Board. In April 2002, the board chastised Lustgarten for unprofessional conduct, for "invented facts" and for misstating the standard of care multiple times in the Hardin case.

In addition, "Dr. Lustgarten testified in the absence of any corroborating evidence and in spite of evidence to the contrary that a physician falsified medical records to protect his associate," according to the board's complaint.

Neither Lustgarten nor his attorney appeared at the revocation hearing because the neurosurgeon says he was subpoenaed to testify in Miami-Dade County, Fla., in another medical malpractice case. The board refused to reschedule and held it without him, which leads to one of Lustgarten's appeal arguments that his due process rights were violated under the 14th amendment.

Among other things, Lustgarten is arguing his North Carolina license cannot be revoked because his testimony, right or wrong, is constitutionally protected free expression under federal and state constitutions.

He claims that the board's action is arbitrary and capricious since other North Carolina licensed physicians who have been accused of drunk driving and sexual misconduct have been reprimanded or suspended but still have their licenses. The revocation is "in retaliation for his having given expert testimony for a plaintiff in a medical malpractice case," writes his attorney.

Contrarily, the board argues constitutional issues do not apply when someone testifies falsely. Lustgarten's testimony was "invented facts," "totally unsubstantiated, inflammatory" and "could not possibly have been made in good faith," according to the appeal brief.

Medical boards from at least four other states have contacted North Carolina board attorney, Mary Wells, JD. "They are interested in the outcome because they have disciplinary actions they'd like to take against licensees for false testimony."

Cohen, Lustgarten's attorney, and other medical malpractice plaintiffs' lawyers believe judge and jury, not a medical board, should decide an expert's reliability. To silence a witness through license revocation is a form of censorship, Cohen claims. "The presiding judge acts as a gatekeeper to ensure the testimony of an expert witness in a medical malpractice case is adequate."

Specialty societies join the fray

In another recent case, the 7th U.S. Circuit Court of Appeals in Chicago upheld the right of the American Association of Neurological Surgeons (AANS) of Rolling Meadows, Ill., to discipline one of its members over improper testimony.

Other specialty societies are moving to discipline members for bogus testimony, as well. At least 10 additional societies have requested copies of AANS's professional conduct guidelines for consideration, including American College of Obstetrics and Gynecology, the American College of Cardiology, American College of Emergency Physicians and the American Academy of Dermatology.

"I wouldn't be surprised if a number of other medical specialty societies have in place professional conduct programs similar to the AANS within the next year or two," says Russell Pelton, AANS general counsel. "I would hope that within three to five years, a majority of societies would have adopted similar programs. I believe they will."

The AMA, as well as the North Carolina Board of Medicine, The American College of Surgeons and other groups believe medical-legal testimony by physician experts is the same as the practice of medicine. In 1998, the AMA adopted a policy that encourages state medical societies to work with state licensing boards to develop disciplinary measures against fraudulent testimony by physicians.

The packages of tort reform measures being sent to state legislatures often include new controls on the use of experts. The Florida Medical Association (FMA), for example, is pushing legislation that requires experts who testify in medical malpractice cases to be of the same or similar specialty as the defendant physician and licensed in Florida.

If experts were not licensed in Florida, they would be asked to obtain a certificate from the Florida Board of Medicine allowing them to testify. The board would then be able to discipline out-of-state witnesses if their testimony were found to be fraudulent.

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Gary Lustgarten, MD, says social responsibility drives him to be an expert witness in medical malpractice cases. "There are bad doctors practicing bad medicine that medical societies fail to discipline."

Lustgarten was born in Brooklyn, N.Y. and raised in Merrick, N.Y., where his father was a general practitioner. The neurosurgeon is built like the wrestler he once was, who attended the University of Iowa as an undergraduate on a wrestling scholarship and was admitted to the school's college of medicine. Lustgarten has practiced in South Florida continuously since completing a neurosurgical residency at the University of Miami/Jackson School of Medicine in 1973.

He started testifying in 1980 and forged relationships with about 100 law firms around the country for whom he reviews 40 cases annually, he says, evenly divided between plaintiff and defense.

The North Carolina board's action to revoke his license has not affected his expert witness work, he says.

Lawyers from Florida's most prestigious malpractice defense firms respect his work. "He is an excellent witness and a truthful physician you can depend on to accurately evaluate and explain the standard of care," says Ilisa Hoffman, JD, a partner in the Miami-based defense firm, Stephens, Lynn, Klein, La Cava, Hoffman & Puya.

Lustgarten does not advertise his availability to review cases, as some experts do, but receives referrals by word of mouth. He says he enjoys the intellectual exercise. "Being an expert is the best source of continuing medical education," he says.

For the moment, doctors who are aware of the North Carolina situation are not reducing their case reviews. "An isolated case is not going to change the behavior of experts," says ACPE member George Ellis, MD, MMM, FAGS, of Orlando, Fla., who spends 20 percent of his time testifying in medical malpractice cases and hires experts to review cases for the Florida Board of Medicine.

"But if you start seeing a pattern where multiple experts are being disciplined, the industry will have to look at it more carefully."

Maureen Glabman

Maureen Glabman is a Miami-based health care reporter and recipient of the 2000 Reuters Fellowship in Medical Journalism at Columbia University's Graduate School of Journalism.