The medical malpractice case of Thomas Christian vs. Joseph Diaco was a week away from trial this spring in a Tampa courtroom when the plaintiff's attorneys made a routine call to a physician who had long ago agreed to testify as an expert witness.
The doctor had already given sworn depositions and reviewed the facts of the case, a lawsuit filed after Christian underwent a routine hernia surgery only to have a severe infection ravage his body and leave him disabled.
The expert had already been paid at least $2,500 for the deposition more than three years earlier against Diaco, who serves as chief of surgery at one of Tampa's largest hospitals and as team doctor for the National Football League's Tampa Bay Buccaneers.
But when it came time to discuss the trial, the doctor told the plaintiff's lawyer that he had no intention of appearing in court while doctors and trial lawyers remain embroiled in a long-running fight over Florida's medical malpractice law.
Tampa attorney Michael Trentalange, who represents Christian, said he believes doctors are feeling pressure not to testify as expert witnesses for plaintiffs in malpractice cases.
The medical profession has clamored for relief from soaring malpractice insurance rates by limiting their liability in malpractice lawsuits. At the same time, doctors are making a quieter push to rein in those in the profession who make money testifying for plaintiffs. Doctors say it's an increasingly necessary measure of defense in malpractice cases.
Florida doctors who are leading such efforts say they are only interested in silencing the "hired guns" who give misleading testimony in an effort to sway a jury into awarding multimillion-dollar verdicts. Physicians would be held accountable for what they say as expert witnesses through professional organizations and state licensing boards.
"It doesn't mean we have a problem with testifying," said Dennis Agliano, M.D., a Tampa head and neck specialist who instituted an expert-witness review process through the Hillsborough Medical Association several years ago. "The only time is when they are testifying outside the box."
But patient's rights groups say such efforts to rein in expert witnesses is only making it more difficult for patients to hold doctors who commit malpractice accountable.
"It's very difficult to find doctors to testify against each other," said Joanne Doroshow of the Center for Justice and Democracy, a New York-based patients group. "There's a white wall of silence in medicine."
This spring at Tampa General Hospital, hospital management proposed revising the employee code of conduct to ban hospital employees from testifying as expert witnesses for plaintiffs. Employees can still testify on behalf of doctors who are being sued.
Tampa General spokesman John Dunn said the proposed change was not prompted by any lawsuit and said hospital management began considering it because "we didn't want TGH to become a shopping mall for experts." Dunn declined to answer questions on why employees would be allowed to work for defense attorneys.
The Florida Board of Medicine recently reiterated its interest in holding both Florida doctors and physicians from other states who come here to testify responsible for their testimony.
That led to legislation last month requiring out-of-state doctors wishing to testify in Florida as experts to obtain a certificate from the state medical board. Complaints could be made against the doctors and their certificates revoked if they were found to be giving false or misleading testimony, effectively barring them from ever testifying in Florida again.
The provision was contained as part of legislation that also aimed at capping attorneys' fees in malpractice cases at $75,000. The measure is stalled in the Florida House.
Nationwide, there have only been a few isolated cases of doctor?s licenses being challenged for testimony or professional medical society's censuring physicians after determining their testimony was false of misleading. None have been in Florida.
For Christian, the concern that his chief expert won't show up at trial adds another frustration to a case that has dragged on eight years. The suit is expected to go to trial later this year.
The expert, Robert Freedman, M.D., of West Palm Beach, an infectious disease specialist, could not be reached for comment.
Diaco has denied any wrongdoing and has presented his own experts who argue that Christian's bad outcome was not the result of malpractice.
Jeffery Hunter, Diaco's attorney, didn't realize Christian's medical expert had withdrawn from the case but said the concern about expert testimony is universal among malpractice cases where the experts can have a huge impact on juries and judges might limit defense attorneys' efforts to challenge the witnesses.
As the patient who believes his life was ruined by a doctor, Christian said he has only become more disillusioned with the medical establishment.
"I'm being held hostage by my own experts," he said.