Physician Sues Medical Association

In a letter of complaint to the medical association last July, the Hillsborough physicians — Jonathan Warach, Pravinchandra Zala and Joseph Krebs — alleged that Fullerton and another doctor who testified as the plaintiffs' expert witnesseses acted “for the sole purpose of propagating a frivolous lawsuit for financial gain.” The Hillsborough doctors said their goal for the peer review was to prevent other doctors from “being terrorized” in the future by plaintiff expert witnesses.

As a result of that complaint, Fullerton alleges, his business value as an expert witness has been damaged. He calls the medical group's peer review process a form of “racketeering.” Fullerton's suit — which was filed in Tallahassee because that's where the medical association is based and where the alleged defamation was first published — asks the court to enjoin the association from proceeding with the review of Fullerton's testimony. It also seeks unspecified damages for the doctor's alleged business losses. His attorneys say Fullerton earns about one-tenth of his income as an expert witness. In 2003 he was honored by the National Republican Congressional Committee as the California Physician of the Year. One of Fullerton's lawyers, James McKenzie, a partner at McKenzie Taylor & Zarzaur in Pensacola, FL, said Fullerton's suit is a response to the medical profession's “newest tactic — to get rid of medical malpractice claims by intimidating expert witnesses.”

The FMA's System

Like a number of other state and specialty medical associations around the country, the FMA has activated a system to track and punish physicians who provide allegedly fraudulent expert testimony against their colleagues, particularly those who work for plaintiffs. The effort has the support of the American Medical Association. Plaintiffs' lawyers say the goal is to discourage doctors from providing expert testimony that helps plaintiffs bring malpractice actions. They claim that by punishing expert witnesses, the medical groups are infringing on the power of the courts.

But the FMA insists that doctors who provide competent and truthful testimony have nothing to fear. FMA associate legal counsel Jeff Scott said retaliation is not the purpose of the association's peer review program. “There is such a thing as legitimate disagreement about standard of medical care,” said Scott, who expects to defend the case filed by Dr. Fullerton. “But some opinion is so offensive and untruthful it goes to the level of perjury.” Judges have an “impossible” task of weeding out bogus testimony, Scott said. As a result, “there is no accountability in the present system.” Scott said he expects to win summary judgment in the case, citing court rulings that have given medical societies broad leeway to review testimony. “I've been expecting this lawsuit,” Scott said. “When you throw light on dark places, people tend to run to the courthouse.”

Testifying for a Buck?

As the cost of medical malpractice insurance has increased, doctors in Florida and around the country have lashed out at plaintiff lawyers and doctors who testify for plaintiffs, blaming them for an alleged explosion in medical malpractice lawsuits and large verdicts. Expert witnesses, doctors argue, fool juries into making unwarranted awards on the basis of bogus testimony.

Expert witnesses are, of course, central to medical malpractice litigation, with most cases turning on the comparative credibility of the plaintiff and defense witnesses. “They are the keys to the courthouse,” Scott said. “Without an expert you don't get in the door.” But in the close-knit world of physicians, the stigma on those known to testify against their colleagues is a powerful disincentive to offer testimony. Already, plaintiffs' attorneys say they find it difficult to find expert witnesses among physicians who practice in the same state as defendant doctors. As the traditional social and professional pressure increasingly is coupled with the new threat of disciplinary sanctions, witnesses are becoming even harder to find. At least partly as a result of these pressures, plaintiffs' expert witnesses often are out-of-state doctors who give testimony for a substantial fee. Many doctors earn a significant portion of their income in this way.

Peer Review

Among the first medical groups to create a peer review system for scrutinizing doctors for their expert testimony was the Rolling Meadows, IL-based American Association of Neurological Surgeons, which in 1983 initiated such reviews as part of its “professional conduct program.” Such reviews can result in censure of the doctors or suspension or expulsion from membership. Other specialty groups, state medical associations such as the Florida Medical Association, and the American Medical Association have followed the neurological surgeons in creating systems for reviewing expert witness testimony.

Accused of a Crime

In his suit, Dr. Fullerton alleges that the medical association and three Hillsborough County doctors who were the defendants in the Tampa case in which he testified used the FMA's peer review process to retaliate against him for the purpose of “intimidating, hindering, and deterring” him and other doctors from appearing as expert witnesses for plaintiffs in medical malpractice cases.

In their letter of complaint to the FMA last July, Drs. Warach, Zala and Krebs contended that the two expert witnesses presented “false testimony” and “false theories” about the Tampa plaintiff's stroke. They said the plaintiff was an 82-year-old diabetic with previous strokes who suffered another “despite appropriate care.” The doctors were found not liable. Betsey Herd, a partner at Wagner Vaughan & McLaughlin in Tampa, who represented the stroke victim, said Fullerton and the other expert witness challenged the Hillsborough doctors' descriptions of the cause of the stroke and, consequently, how “appropriate” the care was.

In their letter to the FMA, the Hillsborough doctors wrote that their goal in requesting peer review of the two expert witnesses was “to prevent the medical profession from being terrorized in the future by similar 'experts.'”

According to Fullerton's attorneys, the current status of the FMA's review is that the association is looking for an independent expert to decide whether the complaint merits further scrutiny by the society's committee on expert witnesses. The only sanction the FMA could use against Fullerton is censure, since he is not an FMA member. Scott said, “All we do is issue an opinion and provide it to the parties. It's not censure. It doesn't go on any data bank or the government's practitioner databases.” But Fullerton's lawyers argue that the FMA's internal publication of the complaint – even though so far it is only to peer reviewers and not the general membership — has been enough to sully Fullerton's professional reputation as an expert witness and reduce his market value. “It will be something he's asked about in future appearances as an expert,” said McKenzie. “It diminishes his value.”

Fullerton's attorneys claim the three doctors' statements in their complaint to the FMA are defamatory per se. “They've accused my client of a crime,” said co-counsel John Vail, of the Washington, D.C.-based Center for Constitutional Litigation, a law firm that represents the Association of Trial Lawyers of America. “There is no right to sue people, even for false testimony,” Vail added. “If [Fullerton] really committed perjury, they should present it to the state attorney as a criminal matter.”

Prior Challenge

Fullerton is not the first expert witness to sue a medical society over peer review. In April 2001, North Miami Beach neurosurgeon Gary Lustgarten filed suit against the neurological surgeons' group after it suspended his membership on the basis of his testimony in a Georgia wrongful death suit. Lustgarten sued in U.S. District Court for the Southern District of Georgia, alleging that the medical society review was a conspiracy to obstruct justice under federal civil rights law, as well as a restraint of trade under the Clayton and Sherman antitrust acts. But Lustgarten dropped the suit after it was removed for trial to a federal court in Chicago, where the medical society is based. That was because the 7th U.S. Circuit Court of Appeals, in which the Chicago court is located, in June 2001 unanimously ruled against the plaintiff in a case nearly identical to Lustgarten's, Austin v. American Ass'n of Neurological Surgeons, No. 00-4028, 2001 U.S. App. LEXIS 12143 (7th Cir., 6/12/01). The 7th Circuit's ruling in Austin, written by Judge Richard Posner, an influential conservative, applauded the medical society for policing its members' expert witness testimony. “This kind of professional self-regulation rather furthers than impedes the cause of justice,” Posner wrote. “Judges need the help of professional associations in screening experts.”

In January 2002, the U.S. Supreme Court refused to hear an appeal of the 7th Circuit ruling. So Austin now stands as the leading case law nationally on this issue. Fullerton's suit, however, makes a different claim — defamation. That raises the issue of whether allegations brought in the context of medical societies' peer reviews are privileged and therefore exempt from such claims.

Miami attorney Thomas R. Julin, a partner at Hunton & Williams who has experience in defamation cases, criticized the FMA's peer review program as “unwise.” But, even so, he said, the Hillsborough doctors' peer-review complaint to the association is privileged. He argued that it can only be considered defamatory if the doctors were found to have acted with malice. On the other hand, Julin said, malice could be proved if Fullerton has testimony from other medical experts that his testimony in the Tampa case was “within the range of plausibility.” Fullerton's lawyers say they have two experts ready to testify on that point.

Vail contends that medical groups are blaming expert witnesses and malpractice suits for broader problems in the health care system. “The litigation system is an easy scapegoat for their situation,” he said. “But circling the wagons by sanctioning experts is not a well-thought-through response.”

In the latest legal battle between doctors and lawyers over medical malpractice litigation, a California internist has sued three Hillsborough County, FL, doctors and the Florida Medical Association (FMA) for initiating an FMA investigation of the internist's expert testimony in a Tampa malpractice case. Dr. John Fullerton, a prominent San Francisco physician, alleges in his lawsuit that he was defamed by statements made in the course of an FMA peer review of his trial testimony last year in Hillsborough Circuit Court. In addition to defamation, the suit, filed May 27 in Leon Circuit Court, alleges conspiracy, witness intimidation and violation of Florida racketeering laws.

Fullerton essentially is challenging the legality of the Florida Medical Association's effort to punish doctors who the association believes have offered bogus testimony in malpractice cases. He and his lawyers argue that such efforts by medical groups jeopardize the system of jury trials by intimidating expert witnesses. Doctors groups' respond that when they review expert testimony, they are simply regulating the practice of medicine. Observers expect more such lawsuits as medical groups expand their efforts to sanction expert witnesses.

Facts of the Case

In a letter of complaint to the medical association last July, the Hillsborough physicians — Jonathan Warach, Pravinchandra Zala and Joseph Krebs — alleged that Fullerton and another doctor who testified as the plaintiffs' expert witnesseses acted “for the sole purpose of propagating a frivolous lawsuit for financial gain.” The Hillsborough doctors said their goal for the peer review was to prevent other doctors from “being terrorized” in the future by plaintiff expert witnesses.

As a result of that complaint, Fullerton alleges, his business value as an expert witness has been damaged. He calls the medical group's peer review process a form of “racketeering.” Fullerton's suit — which was filed in Tallahassee because that's where the medical association is based and where the alleged defamation was first published — asks the court to enjoin the association from proceeding with the review of Fullerton's testimony. It also seeks unspecified damages for the doctor's alleged business losses. His attorneys say Fullerton earns about one-tenth of his income as an expert witness. In 2003 he was honored by the National Republican Congressional Committee as the California Physician of the Year. One of Fullerton's lawyers, James McKenzie, a partner at McKenzie Taylor & Zarzaur in Pensacola, FL, said Fullerton's suit is a response to the medical profession's “newest tactic — to get rid of medical malpractice claims by intimidating expert witnesses.”

The FMA's System

Like a number of other state and specialty medical associations around the country, the FMA has activated a system to track and punish physicians who provide allegedly fraudulent expert testimony against their colleagues, particularly those who work for plaintiffs. The effort has the support of the American Medical Association. Plaintiffs' lawyers say the goal is to discourage doctors from providing expert testimony that helps plaintiffs bring malpractice actions. They claim that by punishing expert witnesses, the medical groups are infringing on the power of the courts.

But the FMA insists that doctors who provide competent and truthful testimony have nothing to fear. FMA associate legal counsel Jeff Scott said retaliation is not the purpose of the association's peer review program. “There is such a thing as legitimate disagreement about standard of medical care,” said Scott, who expects to defend the case filed by Dr. Fullerton. “But some opinion is so offensive and untruthful it goes to the level of perjury.” Judges have an “impossible” task of weeding out bogus testimony, Scott said. As a result, “there is no accountability in the present system.” Scott said he expects to win summary judgment in the case, citing court rulings that have given medical societies broad leeway to review testimony. “I've been expecting this lawsuit,” Scott said. “When you throw light on dark places, people tend to run to the courthouse.”

Testifying for a Buck?

As the cost of medical malpractice insurance has increased, doctors in Florida and around the country have lashed out at plaintiff lawyers and doctors who testify for plaintiffs, blaming them for an alleged explosion in medical malpractice lawsuits and large verdicts. Expert witnesses, doctors argue, fool juries into making unwarranted awards on the basis of bogus testimony.

Expert witnesses are, of course, central to medical malpractice litigation, with most cases turning on the comparative credibility of the plaintiff and defense witnesses. “They are the keys to the courthouse,” Scott said. “Without an expert you don't get in the door.” But in the close-knit world of physicians, the stigma on those known to testify against their colleagues is a powerful disincentive to offer testimony. Already, plaintiffs' attorneys say they find it difficult to find expert witnesses among physicians who practice in the same state as defendant doctors. As the traditional social and professional pressure increasingly is coupled with the new threat of disciplinary sanctions, witnesses are becoming even harder to find. At least partly as a result of these pressures, plaintiffs' expert witnesses often are out-of-state doctors who give testimony for a substantial fee. Many doctors earn a significant portion of their income in this way.

Peer Review

Among the first medical groups to create a peer review system for scrutinizing doctors for their expert testimony was the Rolling Meadows, IL-based American Association of Neurological Surgeons, which in 1983 initiated such reviews as part of its “professional conduct program.” Such reviews can result in censure of the doctors or suspension or expulsion from membership. Other specialty groups, state medical associations such as the Florida Medical Association, and the American Medical Association have followed the neurological surgeons in creating systems for reviewing expert witness testimony.

Accused of a Crime

In his suit, Dr. Fullerton alleges that the medical association and three Hillsborough County doctors who were the defendants in the Tampa case in which he testified used the FMA's peer review process to retaliate against him for the purpose of “intimidating, hindering, and deterring” him and other doctors from appearing as expert witnesses for plaintiffs in medical malpractice cases.

In their letter of complaint to the FMA last July, Drs. Warach, Zala and Krebs contended that the two expert witnesses presented “false testimony” and “false theories” about the Tampa plaintiff's stroke. They said the plaintiff was an 82-year-old diabetic with previous strokes who suffered another “despite appropriate care.” The doctors were found not liable. Betsey Herd, a partner at Wagner Vaughan & McLaughlin in Tampa, who represented the stroke victim, said Fullerton and the other expert witness challenged the Hillsborough doctors' descriptions of the cause of the stroke and, consequently, how “appropriate” the care was.

In their letter to the FMA, the Hillsborough doctors wrote that their goal in requesting peer review of the two expert witnesses was “to prevent the medical profession from being terrorized in the future by similar 'experts.'”

According to Fullerton's attorneys, the current status of the FMA's review is that the association is looking for an independent expert to decide whether the complaint merits further scrutiny by the society's committee on expert witnesses. The only sanction the FMA could use against Fullerton is censure, since he is not an FMA member. Scott said, “All we do is issue an opinion and provide it to the parties. It's not censure. It doesn't go on any data bank or the government's practitioner databases.” But Fullerton's lawyers argue that the FMA's internal publication of the complaint – even though so far it is only to peer reviewers and not the general membership — has been enough to sully Fullerton's professional reputation as an expert witness and reduce his market value. “It will be something he's asked about in future appearances as an expert,” said McKenzie. “It diminishes his value.”

Fullerton's attorneys claim the three doctors' statements in their complaint to the FMA are defamatory per se. “They've accused my client of a crime,” said co-counsel John Vail, of the Washington, D.C.-based Center for Constitutional Litigation, a law firm that represents the Association of Trial Lawyers of America. “There is no right to sue people, even for false testimony,” Vail added. “If [Fullerton] really committed perjury, they should present it to the state attorney as a criminal matter.”

Prior Challenge

Fullerton is not the first expert witness to sue a medical society over peer review. In April 2001, North Miami Beach neurosurgeon Gary Lustgarten filed suit against the neurological surgeons' group after it suspended his membership on the basis of his testimony in a Georgia wrongful death suit. Lustgarten sued in U.S. District Court for the Southern District of Georgia, alleging that the medical society review was a conspiracy to obstruct justice under federal civil rights law, as well as a restraint of trade under the Clayton and Sherman antitrust acts. But Lustgarten dropped the suit after it was removed for trial to a federal court in Chicago, where the medical society is based. That was because the 7th U.S. Circuit Court of Appeals, in which the Chicago court is located, in June 2001 unanimously ruled against the plaintiff in a case nearly identical to Lustgarten's, Austin v. American Ass'n of Neurological Surgeons, No. 00-4028, 2001 U.S. App. LEXIS 12143 (7th Cir., 6/12/01). The 7th Circuit's ruling in Austin, written by Judge Richard Posner, an influential conservative, applauded the medical society for policing its members' expert witness testimony. “This kind of professional self-regulation rather furthers than impedes the cause of justice,” Posner wrote. “Judges need the help of professional associations in screening experts.”

In January 2002, the U.S. Supreme Court refused to hear an appeal of the 7th Circuit ruling. So Austin now stands as the leading case law nationally on this issue. Fullerton's suit, however, makes a different claim — defamation. That raises the issue of whether allegations brought in the context of medical societies' peer reviews are privileged and therefore exempt from such claims.

Miami attorney Thomas R. Julin, a partner at Hunton & Williams who has experience in defamation cases, criticized the FMA's peer review program as “unwise.” But, even so, he said, the Hillsborough doctors' peer-review complaint to the association is privileged. He argued that it can only be considered defamatory if the doctors were found to have acted with malice. On the other hand, Julin said, malice could be proved if Fullerton has testimony from other medical experts that his testimony in the Tampa case was “within the range of plausibility.” Fullerton's lawyers say they have two experts ready to testify on that point.

Vail contends that medical groups are blaming expert witnesses and malpractice suits for broader problems in the health care system. “The litigation system is an easy scapegoat for their situation,” he said. “But circling the wagons by sanctioning experts is not a well-thought-through response.”