When Bruce Jaufmann, M.D., was dropped as defendant in a malpractice case in 1998, he was so upset with testimony by the plaintiff's expert witness, Gary Lustgarten, M.D., that he reported him to their specialty society, the American Association of Neurological Surgeons.
In an unusual program now catching on with other medical societies, the Rolling Meadows, Ill.-based AANS disciplines members it concludes have given false or misleading expert witness testimony.
"I wanted justice to be done," says Jaufmann, a Fayetteville, N.C., neurosurgeon, who says he counted 27 areas of Lustgarten's testimony that were "a fabrication of the standard of care."
Reviewing the case in 2000, an AANS committee of four neurosurgeons determined that Lustgarten's testimony misrepresented standards of care. As punishment, they suspended his AANS membership for six months, AANS officials say.
Crossing the line?
But Lustgarten, a North Miami Beach neurosurgeon, sees it differently.
"The AANS has overstepped its bounds," Lustgarten says. "They have become quite an advocate for quelling plaintiffs' experts."
Lustgarten says other neuroscience experts for the plaintiff in the 1998 case gave the same testimony he did. And even though Jaufmann was dropped from the suit, the defendants settled the lawsuit for $2.3 million in midtrial, Lustgarten says.
Jaufmann then brought his accusations against Lustgarten to the North Carolina Medical Board, which, in a rare move for boards regarding expert witnesses, revoked Lustgarten's license in July 2002.
But a state court judge reversed the board's decision and all but one of the board's findings against Lustgarten, and the board will re-examine that one finding in September, according to Lustgarten and the AANS.
"I feel vindicated," Lustgarten adds, saving his strongest criticisms for his specialty society: "The AANS has its own agenda. It propagates the white coat of secrecy."
In April 2001, Lustgarten sued the AANS in U.S. District Court in Georgia, alleging that its sanctions against expert witnesses was an antitrust violation and a conspiracy to obstruct justice. But he dropped the suit later that year after it was moved to the federal court in Chicago, near the AANS.
Roberto Heros, M.D., immediate past president of AANS, says that, while the process is not open to the general public, it is even-handed.
"We work very hard to make this program fair," says Heros, who, as an AANS board member, has overseen several disciplinary actions against expert witnesses.
Heros acknowledges only members can file complaints to the AANS, but he says this is required by the group's liability insurer.
Out of 27 expert witness cases the group has ruled on, AANS officials report that not one has involved an expert witness for the defense. "We would love to see cases where a neurosurgeon is testifying for the defense," Heros says, "but we don't get them."
In neurosurgery, a highly litigated field in which a physician is often named in one malpractice suit per year, defenders of the AANS program say it is necessary because a few unscrupulous expert witnesses testifying for a plaintiff can harm a neurosurgeon's reputation.
Heros says the AANS typically disciplines an expert when he inaccurately identifies an accepted practice or when he fails to note alternative accepted practices, which the defendant might be using.
Heros says he does not rule out testifying for the plaintiff but, like many colleagues, he has only testified for the defense.
"I will only testify for a neurosurgeon I know, who I feel has been wronged, who is going through this agony of being sued and needs someone to defend him," he says.
AANS officials say the disciplinary program, which has suspended 10 members for up to a year and expelled one since it began in 1983, helps keep expert witnesses honest.
Experts think twice
But Gary Friedman, a plaintiff's attorney in Coral Gables, Fla., says the program has scared most neurosurgeons in this tiny specialty of 3,500 practicing physicians from testifying for plaintiffs, making it hard to find an expert for a neurosurgery case.
In March, Friedman says, Robert Rand, M.D., a Santa Monica, Calif., neurosurgeon who had served as an expert witness for him for six years, wrote him a letter shortly before a case was to go to trial.
In its entirety, Rand's letter stated: "I have been informed by the senior neurosurgical society to discontinue expert testimony for plaintiffs or risk membership. Therefore I am withdrawing as your expert."
Friedman says he never heard from Rand again, and Rand would not return this reporter's calls. Friedman says Rand could only be referring to the AANS and that the AANS is "blackballing" colleagues who testify against fellow neurosurgeons.
Russell Pelton, general counsel for the AANS, says association officials did not contact Rand about Friedman's case. Pelton adds, however, that four months earlier Rand had been dismissed from the group for a year for his expert testimony on another malpractice case, and that Rand may have been reacting to that action.
"I guess he realized he had to be careful about what he was going to say," Pelton says.
Disagreeing with many plaintiffs' attorneys, Pelton says censure from the AANS does not end a neurosurgeon's career as an expert witness. When asked by the court to explain the censure, "they say that's just the old-boys' network of the neurosurgeons," he says.
But the courts are beginning to take the AANS process seriously. After years of operating without strong legal backing, Pelton says the program was upheld in 2001 by the 7th Circuit Court of Appeals in Chicago in a case brought against it by Donald Austin, M.D., a Michigan neurosurgeon whom the group suspended in 1997.
Praising the program, Chief Judge Richard Posner wrote that "this kind of professional self-regulation furthers, rather than impedes, the cause of justice."
Pelton says Posner's opinion and the AMA's endorsement of expert witness disciplinary programs in 2000 have encouraged similar programs. The American College of Obstetricians and Gynecologists, the American Society of Anesthesiologists and the Florida Medical Association report they have begun disciplinary programs in the past two years. Pelton says about 10 more societies also are considering a program.
Jeff Scott, an FMA attorney, says expert witnesses need to explain to judges and juries that there can be several standards of care. "You can have a procedure that five doctors would do one way and five more another way," he says. "The problem is when an expert on one side says the other side is practicing below the standard of care."
Meanwhile, the AMA and other groups are urging state licensing boards to police expert witnesses, which requires that expert testimony be considered the practice of medicine. "Medical boards and medical societies have an obligation to say when testifying is off the mark," Jaufmann says. "If you testify that far off the mark, should you really be practicing medicine?"
How the AANS program worksA member of the American Association of Neurological Surgeons can file a complaint against a follow member on his testimony as expert witness for plaintiff or defense in a malpractice case.
A committee of four neurosurgeons reviews court records and requires the accuser to face the accused in a formal review of the evidence.
The committee may call for suspension of membership, from three months to a year, or expulsion. The committee makes a recommendation to the AANS board, which makes the final determination.
In 20 years, the program has reviewed 27 cases, all of which involved plaintiff testimony. Ten cases led to membership suspension, and one led to expulsion.