Expert Witness sues Defendants

[Neuron]

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The latest instance of insanity in the continuing saga of the medical malpractice circus may be viewed in this NY Times article (requires registration but is otherwise currently free).

Briefly:

3 Florida physicians, Drs. Warach, Krebs and Zala, had a malpractice suit brought against them by representatives of an 82-year old patient of theirs who, with a history of diabetes and multiple prior strokes, stroked again under their care. This suit was apparently brought to determine the soundness of their stroke prevention management.

The plaintiff's attorney hired Dr. John Fullerton, a San Francisco internist, to serve as an expert witness aginst the three defendants.

The defendants won. The judge also denied a motion for a new trial.

The defendants then wrote to the Florida Medical Association asking that the expert testimony of Dr. Fullerton be reviewed by the FMA's Council on Ethical and Judicial Affairs. They claimed Dr. Fullerton "presented false testimony and false theories about stroke...for the sole purpose of propagating a frivolous lawsuit for financial gain."

Some medical organizations have mechanisms whereby expert testimony in trials is peer-reviewed after the trial has ended to ?weed out incompetent and dishonest experts?. This is essentially a mechanism aimed at guns for hire. If it is determined that an expert has provided unreliable testimony, they can be expelled by their medical society.

It is unclear to me what the Florida Med Assoc can do in this case since Dr. Fullerton is not a member, and does not practice in Florida.

That however has not stopped him. He has filed a suit against the defendants and the FMA, alleging that ?the association and the three doctors had not only libeled him but also damaged the commercial value of his expert testimony?. This makes ?it less likely that others will want to hire [him] as an expert witness?.

For the ATLA slant, look here.

 

[xanthines]

FMA can hire a good lawyer!

It seems like the fact that the 3 FL docs won their case (ie the jury didn't believe Fullerton) would make others less likely to hire him as an expert witness.

Does anyone know the background of this guy? I'm just wondering if this guy really is an expert. Although it makes no legal sense to do so, you could hire a retired pediatrician as an expert witness for a neurosurgery case (of course, a good lawyer would rip him/her on cross-x).

-X

It is unclear to me what the Florida Med Assoc can do in this case since Dr. Fullerton is not a member, and does not practice in Florida.

That however has not stopped him. He has filed a suit against the defendants and the FMA, alleging that ?the association and the three doctors had not only libeled him but also damaged the commercial value of his expert testimony?. This makes ?it less likely that others will want to hire [him] as an expert witness?.
QUOTE]

 

[tofurious]

I'm just wondering if this guy really is an expert. Although it makes no legal sense to do so, you could hire a retired pediatrician as an expert witness for a neurosurgery case (of course, a good lawyer would rip him/her on cross-x).

I don't think you need to be a world expert to testify in a courtroom, since most world experts would not lower themselves to that level. This guy is an INTERNIST. It makes you wonder why they went for an internist instead of a neurologist (once again, this reminds me of the UCSF ortho crackhead who sells snake oil on TV that cures cancer).

 

[Docxter]

I doubt that he'll get anywhere. Not too long ago, the American Association of Neurological Surgeons suspended a neurosurgeon for providing false testimony. He sued the AANS in return for lost wages as a result of this punishment (since something like 80% of his income was from testimony for malpractice lawyers). But the judge threw out his case. The most proactive specialty in this regard has been neurosurgery (since the 1980s). I know that the national societies for two other highly sued specialties (i.e. OB/GYN and radiology) have also initiated this process of reviewing expert testimonies and punishing members who give inaccurate or false testimony.

Another interesting story which discusses the whole issue:

http://www.msnbc.msn.com/id/5155022/

 

[Goober]

I doubt that he'll get anywhere. Not too long ago, the American Association of Neurological Surgeons suspended a neurosurgeon for providing false testimony. He sued the AANS in return for lost wages as a result of this punishment (since something like 80% of his income was from testimony for malpractice lawyers). But the judge threw out his case. The most proactive specialty in this regard has been neurosurgery (since the 1980s). I know that the national societies for two other highly sued specialties (i.e. OB/GYN and radiology) have also initiated this process of reviewing expert testimonies and punishing members who give inaccurate or false testimony.

Another interesting story which discusses the whole issue:

http://www.msnbc.msn.com/id/5155022/

False expert testimony is a huge problem in medicine. The problem is that jurors really don't understand what constitutes standard of care and what is malpractice. They see somebody with credentials saying something completely false but they don't know that he is completely full of garbage because they don't have the background to understand what is going on. The last line of that article says it all. You can hire anybody to say anything if you pay them enough money.

"Rand, a former UCLA professor, later admitted "he never read that stuff" about the current scientific thinking, "

"Rand, the only expert for the patient, admitted that no medical literature supported his view. And the Washington Court of Appeals said, "Dr. Rand's opinion about the standard of care was based on his own admittedly limited experience with other patients. He could not specifically remember the particular patients, could not remember the time interval between the onset of symptoms and surgery, nor could he elaborate on the extent of the patients' deficits."

The fact that somebody like this could compeltely ruin your professional career is infuriating. Does this guy have any morals? Here he is providing "expert testimony" and yet he admits that he doesn't know the literature or have any experience in the matter. Sure he was caught this time, but how many cases did he do before this where he did not get caught?

 

[tofurious]

The fact that somebody like this could compeltely ruin your professional career is infuriating. Does this guy have any morals? Here he is providing "expert testimony" and yet he admits that he doesn't know the literature or have any experience in the matter.

Sadly, this is what the degree MD gets any graduate - false credentials until proven otherwise. This guy belongs in the same group as the complementary medicine "gurus" (eg. people selling pediatric weight loss miracle cures under congressional investigation) who use their MD diplomas to sell the same snake oils other ex-cons and paraprofessionals sell without an MD. Too many residents and physicians leave their morals behind once they are given the license to practice based on their own beliefs, and the AMA and state boards of medical practice just don't have enough authority to ban every single charlatan from the media and the public. Eventually, either the FDA needs to become more of a DEA like organization (since AMA is too into self-interests), or the medical community will simply become the most powerless knowledged body ever.

 

[Neuron]

Hi there,

Sorry I let the thread slip, I?ve been busy getting overworked.

Xanthines, to respond to your question about Dr. Fullerton, he is listed as an ?internist and geriatrician? in the article. Stroke management is ideally carried out by neurologists, but there are probably more stroke patients than there are available neurologists, and the run off gets seen by geriatricians and internists. There is no legal requirement that the ?expert? be of the same specialty as the defendant (although that would of course be preferable) ? an internist who sees a lot of stroke may be able to bill himself as a plausible ?expert?.

There is no surprise at all that ?experts? can disagree on the appropriate management of a case ? the very existence of experts on opposing teams speaks to that. What I find odd in this case was the nature of the issue ? stroke prevention in an octogenarian old-stroker with multiple risk factors.

It would have been interesting to see the details of the case and testimony ? stroke medicine is one of the most highly researched areas in medicine, and the evidentiary basis for what is done is pretty unambiguous (where there is uncertainty, that uncertainty ? and the degree to which it is so - is often clearly demarcated in the literature). It is difficult to see how there could have been very great controversy about preventive management in this case. I strongly suspect this guy was pulling stuff out of his posterior, the way some hired guns sometimes do without batting an eyelid.

 

[Neuron]

Docxter, thanks for that article. It was news to me ? I at first felt that surely there had been some mistake, surely this wasn?t the Prof Rand ? but it was. Came as a shock. I actually didn?t know he was still, well, living. And for this to happen. Sad way to go.

Those not familiar with neurosurgical lore may be interested to know that the individual in the article Docxter referenced is not just ?some expert?. He is a neurosurgical legend, one of the great pioneers, spoken of in the same breath as Yasargil, Thoralf Sundt, Talhairach, Olivechrona. The guy?s picture even appears in the textbooks, in those history of neurosurgery chapters.

I checked on the story, and it?s true. He has been suspended by the AANS.

 

[Neuron]

Goober & Tofurius,

I think the important issue here is how we may determine the veracity and dependability of medical testimony ? bearing in mind that these testimonies are being evaluated by individuals who lack even the elementary education or training that would enable them to simply understand what is being said.

For me personally what is most distressing is not so much that there are ?experts? who will provide testimony that contradicts the opinion of a majority of their peers.

A learned profession is unlikely to consist entirely of uncritical, doddering dittoheads ? there will always be people who think of different ways of doing things. In instances where there is no evidence for one way being the best, this multiplicity of opinion is not a bad thing.

What is bad is that we have in place now a system where these opinions ? and they can often be complex ? are evaluated by people who simply do not understand them. Except in cases of blatant and clearly gross negligence, in coming to a decision that is fair, I think a jury must first be able to understand ? really understand - everything about the problem, the management, the diagnosis, the procedure, and the subtleties of the evidence for them, the strengths of the related trials and studies. Because those are the complexities and uncertainties the doctors deal with when they make their decisions ? don?t judge me until you?ve walked a mile in my shoes, so to speak.

Peer review by professional bodies is probably a good thing, but the real problems are in the courtrooms, and until something can be done about that, it is just so much handholding for the defendant doctors.

 

[xanthines]

Oh, I know there's no LEGAL requirement. I just think there should be wherever possible.

Does anybody know if they have special judges for certain types of cases? I've heard that for cases involving complex finances (and RICO, maybe?) that the judges have special familiarity with these issues. Why can't there be the same for medical malpractice? Surely some of those MD/JD's must want to be judges. They don't even have to be a trained practitioner. Just a judge that has is willing to take the time to learn the uncommon circumstances that arise in these cases, ie a judge whose caseload is >75% medical malpractice. Maybe this is already inplace. I'll admit that I've never been in a courtroom and if I can keep it that way... well that's fine by me!

It would be interesting see details of the case. It seems like that's where the sanity lies in some of these apprently frivolous lawsuits. At first you say, what a jackass, but when you learn a few details, you change your mind.

Anybody have any opinions on if there would be an increase/decrease in the number of malpractice cases? Settlements? Settlement amounts? Damages awarded?

-X

Hi there,

It would have been interesting to see the details of the case and testimony ? stroke medicine is one of the most highly researched areas in medicine, and the evidentiary basis for what is done is pretty unambiguous (where there is uncertainty, that uncertainty ? and the degree to which it is so - is often clearly demarcated in the literature). It is difficult to see how there could have been very great controversy about preventive management in this case. I strongly suspect this guy was pulling stuff out of his posterior, the way some hired guns sometimes do without batting an eyelid.

 

[MacGyver]

http://www.msnbc.msn.com/id/5155022/

Austin's annual income as an expert witness dropped from $220,000 to $77,000 after he was suspended for malpractice testimony against a fellow neurosurgeon. He argued that the program was designed to protect association doctors at the expense of innocent victims of negligence.

this is absolutely outrageous! There should be a nationwide law which says that "experts" can only make 10% or $10,000 income per year on witness testimony, whichever is lower.

No wonder so many doctors have sold their souls to the lawyers. Selling your soul pays A HELL OF A LOT BETTER for less work than practicing medicine does!

 

[MacGyver]

It seems like the fact that the 3 FL docs won their case (ie the jury didn't believe Fullerton) would make others less likely to hire him as an expert witness.

No way! are you kidding me? They will hire ANYBODY who says what they want them to say.

Lets not kid ourselves here. Law firms have a well known list of "hired guns" who, for the right price, will say whatever you want. If you read the link docxter posted you'll find evidence of this when the other lawyer bemoans the fact that his "expert" decided to bail out on him after getting suspended by his professional association.