October 22, 2014

Of Counsel: Medical Malpractice

Doctors vs. Doctors

The Florida Medical Association is trying to crack down on doctors who testify in behalf of injured patients against fellow physicians.

Pat Dunnigan | 9/1/2004
Two months from now, Florida voters will consider a series of constitutional amendments that pit doctors against lawyers over the issue of medical malpractice lawsuits. But while both sides gird for war at the polls, the Florida Medical Association is quietly pushing on a second front -- against some of its own colleagues.

Two years ago, a Tampa plastic surgeon, Dennis Agliano, began urging the association to crack down on doctors who testify in malpractice lawsuits as expert witnesses in behalf of injured patients.

Expert witness testimony is critical in medical malpractice cases -- state law requires a medical expert's affidavit before a medical malpractice case can even be filed. At trial, testimony from an expert witness is often the key factor in determining whether the defendant-doctor followed generally accepted procedures -- "standards of care" -- in treating a patient.

Agliano and the FMA believe some expert-witness physicians misrepresent those standards of care when they testify in behalf of patients; those physicians, they say, should lose their membership in the association and face other sanctions.

Defense lawyers also use expert witnesses, but Agliano and the FMA make no secret of the fact that they're focusing on the expert witnesses who testify for patients. The point is clearly to cut down on lawsuits against doctors.

Agliano spearheaded a similar effort by the Hillsborough County Medical Association in 1995. The association took complaints from doctors who had been sued and believed that the expert witnesses who testified against them had been unfair. The association then assigned its own experts to review the testimony. If the association's experts found that an expert witness had misrepresented the standards of care, it sent the witness a letter threatening to expel him from the association. Expulsion has no effect on physicians' ability to practice medicine but can reduce their value as expert witnesses in future cases.

"We don't have a problem with doctors testifying against other doctors," Agliano says. "We have a big problem with doctors who violate the standards of care."

Green light
The American Association of Neurological Surgeons has been policing its members in similar fashion for two decades. Legal issues involving charges of restraint of trade and antitrust violations deterred other medical groups from copying the approach, says Chicago lawyer Russell Pelton, who represents the AANS. But a recent series of court decisions resolved many of the legal issues in the neurosurgeon group's favor and brought renewed interest in the practice.

"I get calls almost every day," says Pelton. The feeling, he says, is that "it's settled law now."

Trial lawyers, however, equate the tactic with witness tampering. The real goal, the lawyers say, is to discourage all doctors from testifying against other doctors. "There is a concerted effort by those in medical politics to have a system in place where there is a chilling effect on experts testifying for plaintiffs," says Richard Shapiro, a Bradenton plaintiffs lawyer and immediate past president of the Academy of Florida Trial Lawyers.

Agliano spearheaded the development of a complaint system over expert testimony for the FMA that the association finalized in July. He becomes president of the association this month, as the group prepares to unveil its first reports against doctors deemed to have been "grossly misrepresenting the actual standard of care" during testimony.

There are about 20 complaints against doctors in various stages, says associate general counsel Jeff Scott. None of the 20 cases involves a doctor who testified for the defense.

Under the FMA's system, a committee screens complaints, then forwards them to an expert approved by the Florida Board of Medicine. If the evidence warrants, the complaints then go before the association's Council on Ethical and Judicial Affairs. After a hearing, the council issues a final report that is sent to the complainant and the expert witness.

The FMA board can vote to suspend or expel the doctor from the association. And the FMA has raised the stakes even further: It has asked the Florida Board of Medicine to allow complainants to forward the FMA's final report to the board of medicine's complaints section. The board of medicine's arsenal of sanctions ranges from fines to revocation of a doctor's license.

Putting up a fight
The FMA won't be able to proceed with its plans without a fight, of course. The first showdown is to take place in a Tallahassee state courtroom this month.

Dr. John Fullerton, a San Francisco internist, is suing three doctors and the Florida Medical Association. Fullerton alleges the doctors and FMA libeled him in a complaint to the FMA that accuses him of giving false testimony in a Tampa malpractice case last February. Fullerton testified against the three doctors in a case involving a man with diabetes who alleged that negligent care caused him to have a stroke.

Fullerton's suit also includes claims of interference with a business relationship, antitrust violations, witness tampering and violation of the state's racketeering statute. The association and the three doctors are asking a judge to dismiss the suit, claiming they're immune from lawsuit under the same privilege that protects those who give evidence in peer review panels.

Fullerton, a geriatric medicine specialist, says when the association's letter arrived in the mail last summer, he thought it was a solicitation to join the FMA. When he opened it, he discovered the complaint, which accuses him of providing false and manipulative testimony for the stroke victim. The language was strong, to say the least.

"The letter accuses me of 'terrorizing' the medical profession," says Fullerton, the recipient of a congressional award naming him California's "Physician of the Year" for 2003. "I was shocked and stunned. After that I was extremely angry."

James McKenzie, a Pensacola trial lawyer who is representing Fullerton with two lawyers from the Washington, D.C.-based Center for Constitutional Litigation, believes the "peer" privilege argument is a stretch given the fact that Fullerton is not even an FMA member.

"Arguably, they could have privilege if he was a member," McKenzie says, but even that is far from a settled question.

McKenzie says the FMA's process is flawed in other respects as well. The credibility of expert witnesses, he says, is a matter for the courts, which have their own procedures for holding experts accountable. The FMA, he says, is attempting to "privately control the judicial argument."

Scott says it is not realistic to expect judges to be able to discern when medical testimony strays dramatically from the standards of care. "If you can show me an instance in the Florida courts" where a judge found an expert's testimony deviated from the standards of care, "I'd love to see it."

Meanwhile, McKenzie says he's getting calls from other lawyers and doctors around the state. "I think there are definitely going to be other lawsuits," he says.

Tags: Politics & Law, North Central, Healthcare

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