Feeling under siege by malpractice lawsuits, medical
societies are setting up tribunals to review the testimony of
doctors who act as expert witnesses in malpractice cases.
Doctors whose testimony does not pass muster can be suspended or
expelled from the societies.
Lawyers who represent those suing doctors in malpractice cases
say such reviews and the threat of sanctions are meant to intimidate
witnesses. They say the mere existence of the reviews has made it
harder to find experts, whose testimony is crucial in most
malpractice trials.
The idea for the grievance review seems to have started with the
American Association of Neurological Surgeons, which has prevailed
in three court battles over their legality. Societies of
obstetricians, gynecologists and spine doctors followed, and
societies of anesthesiologists and ear, nose and throat specialists
are expected to vote on establishing similar procedures this summer
and fall.
"There are probably another 10 that are studying it closely,"
said Russell M. Pelton, a lawyer in Chicago who represents the
neurosurgeons' association.
The American Medical Association supports the moves, said Dr.
Donald J. Palmisano, the association's president-elect.
"The giving of expert testimony should be considered the practice
of medicine, and it should be the subject of peer review," Palmisano
said. "If someone comes into court and gives junk science, we don't
want fraudulent testimony in court."
But the trend troubles plaintiffs' lawyers.
"Not only does this appear to be a form of intimidation of
witnesses that violates the federal Civil Rights Act, but this is a
sort of restraint of trade that could also be an antitrust
violation," said Robert Peck, the president of the Center for
Constitutional Litigation, which often represents the American Trial
Lawyers Association.
"It's extremely widespread," Peck said. "It leads us to believe
that many doctors are afraid to come forward because they fear
retaliation."
Some lawyers say the effect of the grievance procedures is
already being felt in the legal system.
"It's more difficult to get a good neurosurgeon as an expert than
any other specialty," said Norman D. Tucker, a Michigan lawyer who
represents patients.
Dr. Albert L. Strunk, vice president for fellowship activities at
the American College of Obstetricians and Gynecologists, said he was
not convinced that review of expert testimony by medical societies
would prevent poor- quality testimony. The college has a grievance
program that has heard occasional complaints about such testimony.
"When a medical society disciplines one of its members for this
sort of thing, it just plays into the hands of the personal injury
lawyers," Strunk said. "They say this is the medical profession
closing ranks to stifle doctors who are speaking out on behalf of a
patient who has been injured."
The neurosurgeons' association has heard more than 30 complaints
over the past 20 years, all but one of them about expert testimony
given on behalf of plaintiffs, Pelton said. Only members of the
society can file a grievance.
The hearings resemble trials, with witnesses and lawyers. They
are usually conducted during annual conventions. The doctor bringing
the complaint must prove "unprofessional conduct, not a difference
of opinion between professionals," Pelton said. "Due process is
observed."
Plaintiffs' lawyers say that only testimony on behalf of
plaintiffs seems to land doctors in trouble. "They are not reviewing
the highly outrageous testimony they see from defendants' experts,"
Tucker said.