The expert medical witness in legal perspective

Journal of Legal Medicine

Volumn 25, Issue 2, 2004, Pages 185-209

  Cohen, Fred L ^a  

^a Gary Roberts and Associates ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COURT; ETHICS; EXPERT WITNESS; FORENSIC MEDICINE; HUMAN; JURISPRUDENCE; LAW SUIT; LEGAL ASPECT; MEDICAL PRACTICE; POLICY; REVIEW; DENTIST; GOVERNMENT; HISTORY; LEGAL LIABILITY; MALPRACTICE; MEDICAL ETHICS; PHYSICIAN; PHYSICIAN ATTITUDE; UNITED STATES;

DENTISTS; ETHICS, MEDICAL; EXPERT TESTIMONY; HISTORY, 19TH CENTURY; HISTORY, 20TH CENTURY; HISTORY, 21ST CENTURY; HUMANS; LIABILITY, LEGAL; MALPRACTICE; PHYSICIAN'S ROLE; PHYSICIANS; PUBLIC POLICY; STATE GOVERNMENT; UNITED STATES;

EID: 3142729451     PISSN: 01947648     EISSN: None     Source Type: Journal    
DOI: 10.1080/01947640490457479     Document Type: Review

References (85)

1. There is no published report of this case because it was settled prior to jury deliberations. The plaintiff was represented by Henry L. Anderson, Jr., of Anderson, Daniel & Cox in Wrightsville Beach, North Carolina. The defendants included Dr. Victor Keranen, Dr. Bruce Paul Jaufmann, and Cape Fear Valley Medical Center. Defendant neurosurgeon Dr. Jaufmann was represented by Gregory Kash of Cranfill, Sumner & Hartog in Raleigh, North Carolina. The information summarized here was synthesized from pleadings, depositions, and a transcript of the Hearing of the North Carolina Medical Board recorded on July 19, 2002, at 1201 Front Street in Raleigh, North Carolina (In re Gary James Lustgarten, M.D.).
2. In addition to Dr. Lustgarten, a board-certified neurologist and a neuroradiologist testified in deposition and at trial, supporting the plaintiff's theories of negligence, breach, and causation.
3. The exact amount and terms of the settlement are subject to a confidentiality agreement and therefore are not available. The defendants at trial included the hospital at which the care was provided, the operating neurosurgeon, and the covering neurosurgeon.
4. Austin v. American Ass'n of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001). Neurological surgeon Donald Austin testified on behalf of an injured woman who brought a medical action against Dr. Q. Michael Ditmore as a result of vocal cord paralysis after an operation to remove a disc from her neck. Expert evidence contrary to Dr. Austin's opinion was given as well. The jury exonerated the surgeon. Subsequently, Dr. Ditmore brought charges of unprofessional conduct against Dr. Austin. The forum was the Professional Conduct Committee of a professional organization to which they both voluntarily belonged. A hearing was held that followed many but not all of the formalities of procedural law, and was well within the boundaries of the framework set up by the organization for this type of dispute resolution. A panel of Dr. Austin's peers sided with Dr. Ditmore and disciplined Dr. Austin by suspending him for six months. Dr. Austin sued, claiming that he was punished as "revenge" for testifying against another neurosurgeon, alleging violations of due process. The trial court dismissed his complaint, holding that he could not show deprivation of an important economic interest in the loss of his continued membership in this voluntary professional organization. Speaking for the United States Seventh Circuit Court of Appeals, Judge Posner affirmed in a particularly scathing indictment of Dr. Austin. Judge Posner noted that Dr. Austin had been accorded as much due process as he was entitled to, without procedural irregularities. He noted that private professional organizations have a duty to "police" their members with regard to giving blatantly false or misleading testimony. Although judges are required to screen proposed expert witness testimony carefully, they need the help of professional organizations to do that, because courts do not have the knowledge or ability to sort out these complicated medical issues in attempting to keep out unscientific and fraudulent testimony. Judge Posner commented on the responsibility of organizations like the AANS to discipline its members when they attempt to utilize the prestige of the organization to "dazzle" judges and juries with inaccurate and misleading ("shoddy") scientific testimony. Because the AANS is a private professional organization, there was no additional recourse for Dr. Austin. As of June 12, 2001, the law in the Seventh Circuit seemed both settled and definite. This set the stage for Dr. Lustgarten. He followed an almost identical path as Austin, and that is where these cases might have ended until Lustgarten's case took a novel twist.
5. PUBLIC CITIZEN HEALTH RESEARCH GROUP, May 2002, at 1-3.
6. Dr. Lustgarten was given notice of the hearing several months in advance. In several letters of correspondence with Board attorney R. David Henderson, Dr. Lustgarten alleged that he was under subpoena for a deposition on Friday, July 19 (the same date as the North Carolina Board hearing was to take place) in a specially set civil trial due to begin on July 22, 2002 in Circuit Court in Miami, Florida. There was an exchange of several letters during the summer months of 2002, in which Mr. Henderson provided counsel to Board president Walter J. Pories, M.D., and acted as an intermediary between Dr. Lustgarten's requests and Dr. Pories's replies. On July 17, 2002, Dr. Pories, acting on behalf of the Board, denied Dr. Lustgarten's request to appear "telephonically" at the July 19, 2002 hearing. Further, the Board declined to change the date of the hearing to accommodate Dr. Lustgarten's personal schedule (even though he indicated he would not be available to attend in person prior to September 20, 2002). There is no explanation available for why Dr. Lustgarten did not send an attorney to the hearing to represent him, even though he was not going to be present in person or by telephone.
7. N.C. GEN. STAT. § 90-14(a)(6) (2002).
8. The Board did not take the position that expert witness testimony represents the practice of medicine, thus avoiding that potential quagmire. See infra § III. Despite this fact, Andrew Watry, the Board's Executive Director, said "giving expert medical testimony falls within the state law's definition of practicing medicine." See Damon Adams, Doctor Loses License Over Expert Testimony, AM. MED. NEWS, Aug. 19, 2002, at 31. It is quite common in medical malpractice cases for the plaintiff's expert to practice in another state and not even hold a license to practice in the state in which the malpractice case arises, is tried, and in which the act of alleged malpractice took place. Further, the expert medical witnesses on both sides almost never actually have examined the patient, but base their opinions on the medical records, x-rays, and tests that are sent to them by counsel for review. Therefore, the state licensing board in the "host" state does not have any jurisdiction or power over the expert who is not licensed in that state.
9. The Board did not take the position that expert witness testimony represents the practice of medicine, thus avoiding that potential quagmire. See infra § III. Despite this fact, Andrew Watry, the Board's Executive Director, said "giving expert medical testimony falls within the state law's definition of practicing medicine." See Damon Adams, Doctor Loses License Over Expert Testimony, AM. MED. NEWS, Aug. 19, 2002, at 31. It is quite common in medical malpractice cases for the plaintiff's expert to practice in another state and not even hold a license to practice in the state in which the malpractice case arises, is tried, and in which the act of alleged malpractice took place. Further, the expert medical witnesses on both sides almost never actually have examined the patient, but base their opinions on the medical records, x-rays, and tests that are sent to them by counsel for review. Therefore, the state licensing board in the "host" state does not have any jurisdiction or power over the expert who is not licensed in that state.
10. Transcript of Hearing, In re Gary James Lustgarten, M.D., July 19, 2002, at 7-9 (quoting Mr. David Henderson, Board Counsel).
11. In re Gary James Lustgarten, M.D., No. 02-CVS-12218 (N.C. Superior Court, Apr. 21, 2003), available at http://images.ncmedboard.org/view All.asp?filename=00016773.tif.
12. Id. at *7.
13. See infra notes 21, 22, & 36.
14. See Adams, supra note 8. During the April 2003 meeting of the Federation of State Medical Boards, members of some Boards said they would take action against physicians who gave false testimony as medical experts.
15. L'Orange v. Medical Protective Co., 394 F.2d 57, 61-62 (6th Cir. 1968) (citing Albert Cohn, Medical Malpractice Litigation, 52 A.B.A.J. 32 (1966)).
16. Frank R. Freemon, The Origin of the Medical Expert Witness, 22 J. LEGAL MED. 349 (2001).
17. The standard of care is usually defined as what a reasonable practioner of the same specialty would or would not do under the same or similar circumstances.
18. See generally H. H. Henry, Necessity of Expert Evidence to Support an Action for Malpractice Against a Physician or Surgeon, 81 A.L.R.2D 597 (1962) (a fairly exhaustive description of the general proposition that the expert medical witness' expert testimony is necessary, but documenting the exceptions and limitations of the rule, for example in cases in which the lack of skill or deficiency in care are obvious enough to be within the range of the ordinary experience and comprehension of a nonprofessional person).
19. A list of the Medical Practice Acts of each of the 50 states and the District of Columbia can be found in J. Scott Andresen, Is Utilization Review the Practice of Medicine?, 19 J. LEGAL MED. 431, 439, n.56 (1998).
20. See, e.g., Francis M. Dougherty, Physician's or Other Healer's Conduct, or Conviction of Offense, Not Directly Related to Medical Practice, as Grounds for Disciplinary Action, 34 A.L.R.4TH 609 (1984) (describing and detailing a host of specific offenses and/or conduct unrelated to patient care that have led to discipline of physicians by individual state licensing boards).
21. Mo. REV. STAT. §§ 334.100.2(4) & (5) (1986).
22. Missouri Bd. of Registration for the Healing Arts v. Levine, 808 S.W.2d 440 (Mo. App. 1991).
23. 587 A.2d 1085 (D.C. 1991).
24. MD. HEALTH & OCC. CODE ANN. §§ 14-504(3) & (4) (1981).
25. In McDonnell v. Commission on Med. Discipline, 483 A.2d 76 (Md. App. 1984), the Maryland Court of Appeals was faced, six or seven years before Joseph, with a similar question and an interesting fact pattern. Orthopedic surgeon Dr. Edmond McDonnell was sued for medical malpractice. The plaintiff hired two physician expert witnesses to testify against McDonnell. After reading their depositions, McDonnell personally called each expert witness's medical residency mentor and indicated to them that he intended to have transcripts of the depositions in his case disseminated to their local and national medical societies. The purpose of this undertaking was to "make certain that the testimony of the witnesses would be honest, reasonable, and medically accurate." Id. at 77. Despite feeling intimidated, both expert witnesses testified at trial. The jury found for defendant McDonnell. The verdict was reversed on appeal, based on witness tampering by Dr. McDonnell. Thereafter, the Maryland Commission on Medical Discipline charged Dr. McDonnell with unprofessional conduct. After an evidentiary hearing, it reprimanded him. Dr. McDonnell appealed, primarily on the grounds that his conduct, while wrong, improper, and injudicious, was not carried out "in his practice as a physician." Id. at 79. After a series of reversals, the Maryland Court of Appeals agreed with him, based on its reasoned interpretation of Maryland's Medical Practice Act.
26. D.C. CODE § 2-3305.14(a)(3) (1989) (authorized the District of Columbia Board of Medicine to impose reciprocal discipline, based on the decision of a licensing authority of another jurisdiction, when the underlying conduct "would be grounds for disciplinary action under District law").
27. This constituted a violation of D.C. CODE § 2-3305.14(a)(8) (1989).
28. THE FLORIDA MEDICAL ASSOCIATION POLICY COMPENDIUM 1998. The Florida Medical Association, Inc., is located at 123 South Adams Street, Tallahassee, Fla. 32301. Board of Governors Minutes 98-10, 1998. Consider as well the full implications of this definitional change. Anyone testifying as an expert medical witness who did not have an active Florida medical license could be prosecuted for the unlicensed and unauthorized practice of medicine, based on the act of giving opinion testimony under oath. See also infra § V.C.
29. This resolution goes one step beyond adding expert witnessing to the definition of the practice of medicine. Supra note 27. It effectively would foreclose any expert licensed in any other state, or hypothetically one licensed in 49 states but not Florida, from giving expert testimony in Florida, regardless of how qualified the individual may be. Even a Florida licensed physician practicing in another state would be barred by this requirement. Practically, many plaintiffs' attorneys seek expert medical witnesses from a state other than the one in which they are litigating, so as to avoid real and potential conflicts of interest between defendants and their expert witnesses. See also Adams, supra note 8, wherein it is observed that physicians do not like to have other physicians testify against them. Thus, they may complain to medical boards. It often is necessary to get physicians from another state to give expert testimony because many will not testify against colleagues in their own state.
30. AMERICAN MEDICAL ASSOCIATION, COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, CODE OF MEDICAL ETHICS: CURRENT OPINIONS WITH ANNOTATIONS § 9.07 (2002).
31. See, e.g., Bradford P. Cohn et al., Guidelines for Expert Witness Testimony in Medical Liability Cases, 94 PEDS. 755 (1994); American College of Surgeons, Statement on the Physician Expert Witness, 85 BULL. AM. COLL. SURGEONS 24 (2000); AMERICAN COLLEGE OF EMERGENCY PHYSICIANS POLICY STATEMENT, CODE OF ETHICS FOR EMERGENCY PHYSICIANS (approved by the ACEP Board of Directors, June 1997 and reaffirmed Oct. 2001); AMERICAN ASSOCIATION OF ORTHOPEDIC SURGEONS, ADVISORY STATEMENT, ORTHOPEDIC MEDICAL TESTIMONY, Doc. No. 1006 (Feb. 1989, rev. Feb. 2001).
32. See, e.g., Bradford P. Cohn et al., Guidelines for Expert Witness Testimony in Medical Liability Cases, 94 PEDS. 755 (1994); American College of Surgeons, Statement on the Physician Expert Witness, 85 BULL. AM. COLL. SURGEONS 24 (2000); AMERICAN COLLEGE OF EMERGENCY PHYSICIANS POLICY STATEMENT, CODE OF ETHICS FOR EMERGENCY PHYSICIANS (approved by the ACEP Board of Directors, June 1997 and reaffirmed Oct. 2001); AMERICAN ASSOCIATION OF ORTHOPEDIC SURGEONS, ADVISORY STATEMENT, ORTHOPEDIC MEDICAL TESTIMONY, Doc. No. 1006 (Feb. 1989, rev. Feb. 2001).
33. See, e.g., Bradford P. Cohn et al., Guidelines for Expert Witness Testimony in Medical Liability Cases, 94 PEDS. 755 (1994); American College of Surgeons, Statement on the Physician Expert Witness, 85 BULL. AM. COLL. SURGEONS 24 (2000); AMERICAN COLLEGE OF EMERGENCY PHYSICIANS POLICY STATEMENT, CODE OF ETHICS FOR EMERGENCY PHYSICIANS (approved by the ACEP Board of Directors, June 1997 and reaffirmed Oct. 2001); AMERICAN ASSOCIATION OF ORTHOPEDIC SURGEONS, ADVISORY STATEMENT, ORTHOPEDIC MEDICAL TESTIMONY, Doc. No. 1006 (Feb. 1989, rev. Feb. 2001).
34. See, e.g., Bradford P. Cohn et al., Guidelines for Expert Witness Testimony in Medical Liability Cases, 94 PEDS. 755 (1994); American College of Surgeons, Statement on the Physician Expert Witness, 85 BULL. AM. COLL. SURGEONS 24 (2000); AMERICAN COLLEGE OF EMERGENCY PHYSICIANS POLICY STATEMENT, CODE OF ETHICS FOR EMERGENCY PHYSICIANS (approved by the ACEP Board of Directors, June 1997 and reaffirmed Oct. 2001); AMERICAN ASSOCIATION OF ORTHOPEDIC SURGEONS, ADVISORY STATEMENT, ORTHOPEDIC MEDICAL TESTIMONY, Doc. No. 1006 (Feb. 1989, rev. Feb. 2001).
35. See AMERICAN ASSOCIATION OF NEUROLOGICAL SURGEONS, CODE OF ETHICS § V. Item B (adopted 1981) (Expert Witness Guidelines, 16A-1 through 4, adopted by the AANS Board of Directors in 1983 & Position Statement on Testimony in Professional Liability Cases, adopted in 1987); Russell Pelton, Professing Professional Conduct (AANS Raises the Bar for Expert Testimony), AM. ASS'N NEUROLOGICAL SURGEONS BULL., Spring 2002, at 7.
36. HOWARD KAUFMAN & JEFF LEWIN, THE PHYSICIAN'S PERSPECTIVE ON MEDICAL LAW (AANS Publication Committee, 1997).
37. Id. at 51.
38. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (deeming the standard for introduction of scientific evidence to be "general acceptance in the scientific community").
39. Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) (holding that standard for admissibility of scientific evidence to be decided by the trial judge is whether proffered expert testimony is objective, reliable, and not too prone to error).
40. A search of Westlaw using multiple combinations of search terms and connectors, as well as a natural language search, failed to yield any case in which a physician had been convicted of perjury for testimony given as an expert medical witness. Dr. Reuben Setliff's administrative disciplinary penalties, to include license revocation for perjury, were reversed on appeal and were not in the nature of criminal proceedings. In re Setliff, 645 N.W.2d 601 (S.D. 2002).
41. The threat to a medical expert witness appears to be the thrust of an insurance organization called "Medical Justice," whose web site information suggests the "[a]ction can be pursued against unscrupulous expert witnesses within the medical societies. Discipline here will strike at the heart of the problem" and "[a]t the physician's request, cases labeled as frivolous will be funded for countersuit and/or pursuit of redress against errant expert witnesses in professional societies." See http://wwv.medicaljustice.com/faq.asp. Expert witnesses typically will not be liable for negligent conduct in connection with their work as expert witnesses. In Gustafson v. Mazer, 54 P.3d 743 (Wash. App. 2002), Margrett Gustafson, party to a custody dispute over her daughter, sued Dr. Irene Mazer, a clinical psychologist, for negligence and defamation in connection with Dr. Mazer's expert opinion memorandum prepared for and at the request of the child's guardian ad litem but without the knowledge of the court. Dr. Mazer was accorded witness immunity both at the trial level and on appeal. In Moses v. McWilliams, 549 A.2d 950 (Pa. Super. Ct. 1988), a patient sued her physician, Dr. Marvin Krane, alleging a breach of confidentiality based on his ex-parte pre-trial discussion with the medical malpractice defendant's attorney, as well as his testimony at the medical malpractice trial. Although the defense planned to call Dr. Krane as an expert witness, the trial court ruled that Dr. Krane could only testify as a fact witness. Additionally, he was accorded absolute immunity from suit by the plaintiff. See also Bruce, 776 P.2d at 666 (negligence action against expert engineering witness Patrick J. Byrne by Robert Bruce, who had hired him to testify in a case against Brace's neighbor; Byrne was accorded witness immunity).
42. See North Carolina Medical Board (Board Orders/Consent Orders/Other Board Actions), July-Aug. 2002, at 2, under "Revocations," as well as "Denials of Reconsideration/Modification," at 6 (in which, on Aug. 22, 2002, following a hearing the Board denied a motion to reopen the case concerning Dr. Lustgarten that was decided by the Board on July 19, 2002). The Federation of State Medical Boards considers it difficult to determine whether or not there are any other cases such as this one (license revocation by a state licensing board related to a physician's expert medical witness testimony) because any such decisions could fall under a more general category of unprofessional conduct. However, that is exactly why Dr. Lustgarten's license was revoked. See also Setliff, 645 N.W.2d at 601.
43. WASH. ANN. CODE §§ 308-122-600-610(6), -630(3) & -680(5) (1987). These statutes were repealed in 1987 but the disciplinary action in this case took place in 1986. The same language is now codified at WASH. REV. CODE §§ 18.83.121 & .130.180 (1995).
44. WASH. ANN. CODE §§ 246-924-350, -360, -380, & -430 (effective Feb. 28, 1991, repealed by 93-07-036, Order 337B, effective Apr. 10, 1993).
45. Deatherage v. State Examining Bd. of Psychology, 932 P.2d 1267 (Wash. App. 1997).
46. Deatherage v. State Examining Bd. of Psychology, 948 P.2d 828 (Wash. 1997).
47. Bruce, 776 P.2d at 666.
48. 706 A.2d 1275 (Pa. Commw. Ct. 1998). See also Michael A. Trimmer, Huhta v. State Board of Medicine: The Commonwealth Court of Pennsylvania Holds that Judicial Immunity Is Not Applicable in Administrative Disciplinary Proceedings Before the State Board of Medicine, 8 WIDENER J. PUB. L. 843 (1999).
49. 706 A.2d 1275 (Pa. Commw. Ct. 1998). See also Michael A. Trimmer, Huhta v. State Board of Medicine: The Commonwealth Court of Pennsylvania Holds that Judicial Immunity Is Not Applicable in Administrative Disciplinary Proceedings Before the State Board of Medicine, 8 WIDENER J. PUB. L. 843 (1999).
50. PA. CONS. STAT. §§ 41(8) & 41(6) (1985).
51. PA. CONS. STAT. § 5929 (1995).
52. North Carolina, similarly, has given its licensing board broad discretion in its mandate "to properly regulate the practice of medicine and surgery for the benefit and protection of the people of North Carolina." See http://www.ncmedboard.org/ ("The Board's Mandate"). See also In re Guess, 393 S.E.2d 833 (N.C. 1990), in which the Supreme Court of North Carolina gave its licensing board fairly broad regulatory power over the professional conduct of physicians. A family practitioner in Asheville practiced homeopathic medicine, as opposed to the traditional "allopathic" medicine. He was charged with violating N.C. GEN. STAT. § 90-14(a)(6) (1985). There was testimony by several North Carolina licensed physicians that homeopathy was not an acceptable and prevailing system of medical practice in North Carolina. In a series of appeals, the Board prevailed. There was a strong dissenting opinion. Guess, 393 S.E.2d at 840 (Frye, J., dissenting).
53. Munchausen Syndrome by Proxy is defined by Steadman's Medical Dictionary (26th ed. 1995) as a form of child maltreatment or abuse inflicted by a caretaker (usually the mother) with fabrication of symptoms and/or induction of signs of disease, leading to unnecessary investigations, interventions, and occasionally serious health consequences, including death of the child.
54. Gustafson v. Mazer, 54 P.3d 743 (Wash. App. 2002).
55. A most interesting question, completely unrelated to witness immunity, is whether members of the North Carolina Medical Board would be immune from suit by Dr. Lustgarten, should he decide to initiate an action against them individually. There might be a tentative answer to that query in Hoke v. Board of Med. Exam'rs of State of North Carolina, 445 F. Supp. 1313 (W.D.N.C. 1978). Dr. Harold R. Hoke sued the North Carolina Board of Medical Examiners and its members (individually and in their official capacities) under 42 U.S.C. § 1983 and the Fourteenth Amendment. The § 1983 claim against the Board for damages failed because the Board is not a "person" within the meaning of section 1983. Likewise, the Fourteenth Amendment claim against the Board failed because of the Eleventh Amendment and the fact that the Board did not voluntarily waive its immunity from suit. No damage claim against the Board could stand. The sole remaining issue was whether the individual board members could claim an entitlement to judicial or quasi-judicial immunity. In a somewhat complicated decision, Dr. Hoke did not fare well.
56. Congress of Neurological Surgeons, 10 N. Martingale Road, Suite 190, Schaumburg, Ill. 60173. This is another national professional neurosurgical organization, distinct from the AANS, and overall less concerned and active in the regulation of professional conduct.
57. Pelton, supra note 31, at 12.
58. Austin, 253 F.3d at 967.
59. Calling "Experts" to Account, AM. MED. NEWS, Sept. 16, 2002, at 23.
60. There are no published proceedings of this case, because Dr. Jacobs did not prevail on the AANS's motion to dismiss his complaint, which was granted. Although the Spring 2002 issue of the AANS Bulletin indicates that this case was affirmed by the New Jersey Supreme Court, there is no record of this anywhere and Dr. Jacobs indicates that he did not pursue any appeal, that the information in the Bulletin is incorrect, and that, although he testified for the plaintiff in the case that was the subject of the disciplinary action by the AANS, he currently only testifies for the defense. Telephone Interview with Dr. George Jacobs, Nov. 10, 2002.
61. The Notice of Censure (a sanction for Dr. Lustgarten's testimony on behalf of a Georgia plaintiff in a back surgery case, not the Hardin North Carolina case) was published in the same issue of the AANS Bulletin, Spring 2002. As an ominous postscript to this Notice of Censure, the editorial note describes a policy change by the AANS Board of Directors, approving a recommendation from the Council of State Neurosurgical Societies at its November 2001 meeting. Whereas sanctions as a result of complaints to the Professional Conduct Committee had always previously been anonymous, all anonymity would be lifted after January 1, 2002. Because the Lustgarten complaint was heard before that time, his name was not divulged in this Notice of Censure.
62. Bernstein v. Alameda-Contra Costa Med. Ass'n, 293 P.2d 862, 864 (Cal. App. 1956). Bernstein reportedly violated Section 4, Article IV, Chapter III of the American Medical Association Principles of Medical Ethics ("When a physician does succeed another physician in charge of a case, he should not disparage by comment or insinuation, the one who preceded him. Such comment or insinuation tends to lower the confidence of the patient in the medical profession and so reacts against the patient, the profession, and the critic.").
63. 58 Id.
64. Id. at 865. The court nonetheless upheld the charges against Bernstein in the other two cases, neither of which involved penalties for expert medical witness testimony. It remanded those cases for a specific determination on the degree and nature of the penalty for these two remaining violations, because it was unclear whether the association would have recommended a lesser punishment than expulsion for the two remaining offenses, rather than the expulsion it had recommended for all original seven.
65. L'Orange v. Medical Protective Co., 394 F.2d 57, 60 (1968).
66. But see http://www.ncmedboard.org/ (homepage of the North Carolina Medical Board) ("Disciplinary action by the Board is primarily intended to protect the public, to prevent a practitioner from doing harm (or further harm), not to punish the practitioner - though punishment may be an effect of its action.").
67. Deatherage deals with the welfare of children. Children's issues and welfare frequently have been treated differently by the law. There is no mention of the source of the complaint against Dr. Deatherage or the origin of the investigation, except that he had been before the board previously for other unprofessional conduct. See Deatherage, 948 P.2d at 829.
68. Austin, 253 F.3d at 975.
69. Id. at 972.
70. To the author's knowledge, there has never been a case in which a court, medical licensing board, or private professional organization has disciplined a medical expert defense witness for opinion testimony in a malpractice proceeding. Such a bias would suggest that the goal is to dissuade plaintiffs' experts (although Judge Posner did not consider this bias to be terribly relevant in his opinion in Austin). Further this is inapposite to the reasoning advanced by "Medical Justice," supra note 37, which tries to rationalize its methods and justify its existence by claiming: We take aim only at those experts who support frivolous cases .... There are an equal number of experts who testify for the defense as for the plaintiff. Good experts rarely testify for the plaintiff all of the time. If the goal is truth, the expert would, of necessity, have to testify for the physician often. By the same token, if the goal of discipline is not vengeance or "pay back," but rather to stem noncredible testimony, then an equal number of defense experts should be subject to discipline as plaintiffs' experts.
71. The Ditmore malpractice case led to Dr. Austin's action against the AANS. Dr. Ditmore practiced in Missouri. Dr. Austin, who testified against him, was licensed in Michigan but may not have been licensed in Missouri. The acts leading to Dr. Ditmore's malpractice trial occurred in Missouri. If Dr. Austin did not have a Missouri medical license, then the state of Missouri would not have had any jurisdiction over him. Accordingly, Missouri would not have been able to discipline him, unless it somehow could have made an argument that giving expert medical testimony in Missouri was the "practice of medicine" and charged him with the unlicensed practice of medicine in Missouri. Such a charge, however, would have run directly afoul of its decision in Missouri Board of Registration for the Healing Arts v. Levine, 808 S.W.2d 440 (1991). Dr. Lustgarten testified in North Carolina and held an inactive medical license in North Carolina, which precluded any jurisdictional challenge by him.
72. Austin, 253 F.3d at 973. An interesting footnote, suggesting that judges are more than capable of making these decisions without such assistance (and without any organizational "prejudice") is found in the case of Gervin v. Andrews, 826 So. 2d 504 (Fla. App. 2002). This case also illustrates that expert medical witnesses are subject to attack and punishment by the judiciary. The trigger for Gervin was the trial in Popps v. Knispel (which provided no published decision because it was a Broward County, Florida Circuit Court case that was not appealed). In Popps, neurological surgeon Steven Gervin was hired by the defendant's counsel and insurance company to carry out a Defense Independent Medical Examination on the plaintiff. Florida's 17th Judicial Circuit Judge Robert Andrews was familiar with the testimony of Dr. Gervin over many years. The judge notified defense counsel, who had planned to introduce Dr. Gervin's videotaped testimony at trial, that he would not permit Dr. Gervin's testimony to be introduced in his courtroom. At a hearing on a defense motion for the judge to either recuse himself or permit Dr. Gervin's testimony, the judge lambasted Dr. Gervin in earthy language and concluded that Dr. Gervin was "incapable of understanding the duty of a witness to tell the truth." Gervin sued the judge under 42 U.S.C. § 1983, alleging a violation of the due process right to be heard "before being condemned through state action to suffer a grievous loss of a constitutionally protected right." The appellate court in Gervin v. Andrews, 826 So.2d 504 (Fla. App. 2002), affirmed the lower court in dismissing the complaint for failure to state a cause of action. The court noted that Gervin did not and could not show that he suffered the deprivation of a constitutionally protected property or liberty interest (citing Cypress Ins. Co. v. Clark, 144 F.3d 1435 (11th Cir. 1998)). This decision was not appealed. There is no discussion regarding whether Judge Andrews would have been accorded absolute immunity from suit had Gervin been able to make out a prima facia case under 41 U.S.C. § 1983. Arguably, he would have. This question has significant implications for Dr. Lustgarten, where the question of potential relative or absolute immunity of the Medical Licensing Board from suit under 42 U.S.C. § 1983 well may be decisive.
73. L'Orange, 394 F.2d at 57.
74. Id. at 63.
75. According to the North Carolina Medical Board, "Board Orders/Consent Orders/Other Board Action" Disciplinary Report for July-Aug. 2002, under "Denials of Reconsideration/Modification": "Following a hearing, the Board denied a motion to reopen the case concerning Dr. Lustgarten that was decided by the Board on 7/19/2002." See http://www.ncmedboard.org.
76. On judicial review of a license revocation by the North Carolina Board, where the evidentiary standard required is a preponderance of evidence, In re Kincheloe, 157 S.E.2d 833 (N.C. 1967), a physician is entitled to a trial de novo by a jury on the issue of unprofessional conduct. State v. Gardner, 159 S.E. 8 (N.C. 1931).
77. N.C. GEN. STAT. § 90-14(a)(6) (2002).
78. See POLICY COMPENDIUM, supra note 27. The Compendium contains a full page of resolutions regarding the expert witness, 12 in number, of which two are described here.
79. Id. Board of Governors Minutes 98-10, supra note 27.
80. POLICY COMPENDIUM, supra note 27, Resolution 97-56.
81. Interestingly, the state of North Carolina, by statute, requires reference to the "standard of practice in the community." N.C. GEN. STAT. § 90-21.12 (1990).
82. See, e.g., Natalie Sohn, Attitudes, Doctors, Lawyers All in Need of Reform, WEST PALM BEACH (FLA.) POST, Sept. 1, 2002, at 4E. There are many so-called 'medical experts' who will testify to anything if the price is right. What we need is a panel of true experts (doctors recognized in their respective fields) to review potential malpractice cases. Huge payments to plaintiffs' experts should be prohibited. Doctors also need to police ourselves by removing licenses from physicians who make a living out of testifying falsely.
83. George D. Lundberg, Expert Witness for Whom?, 252 J.A.M.A. 251 (1984) (emphasis added).
84. I b i d.
85. North Carolina trial attorney Clifford Britt has said: "If I was a doctor and somebody called me up to be an expert witness, I'd say, Im sorry. I'm busy.' I don't know why anyone would risk losing their license over a medical board disagreeing with his medical opinion." See Adams, supra note 8, at 6.