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  Clash act: peer review of expert witness
  testimony

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October 2006

Feature Story

Ed Finkel

In deciding not to create a formal mechanism for peer review of expert witness testimony, the CAP may have avoided legal headaches like those facing the Florida Medical Association and three physicians in whose medical malpractice trial John Fullerton, MD, served as an expert witness.

Dr. Fullerton, a California internist and geriatrician, testified as a plaintiff expert witness in the malpractice trial of Jonathan Warach, MD, Pravinchandra Zala, MD, and Joseph Krebs, MD. After the trial, which the defense won, the three physicians reported Dr. Fullerton to the Florida Medical Asociation, or FMA, claiming he had provided "false testimony" against them in the trial.

In response, the FMA launched an evaluation of Dr. Fullerton’s testimony, prompting Dr. Fullerton to file suit in Florida court alleging defamation, tortious interference with an advantageous business relationship, conspiracy through abuse of economic power, and witness intimidation. That complaint also makes a claim against the FMA for an alleged violation of the state’s Racketeer Influenced and Corrupt Organization, or RICO, Act.

Initially, a Florida court evaluating Dr. Fullerton’s case concluded he could not pursue his case, but on July 11, the Florida District Court of Appeals reversed that decision, reinstating Dr. Fullerton’s claims. The July 11 ruling does not guarantee a final victory for Dr. Fullerton, but it allows him to proceed with his complaint against the FMA and the defendant physicians. The appeals court decision itself may be appealed, making it unclear at this time whether Dr. Fullerton’s civil case will eventually go beyond these initial skirmishes.

But even if the defendants ultimately prevail, the fact that the case will be allowed to go forward is a "bad development" for those who advocate peer review of expert medical testimony in malpractice litigation, says Jack Bierig of the Chicago law firm Sidley Austin LLP. It exposes those who sponsor and conduct such peer review to significant risks and costs, he says.

"Just being forced to defend a full-blown lawsuit, even if you win, is enormously costly and anxiety-provoking. It’s not something a pathologist will want to go through." He adds, "It’s not only important to win cases, it’s important to get out early…

"It’s still quite possible that the FMA and the physicians who were named as defendants will win the case," he says. "But they are going to have a long, legal process now, with a risk that they could lose."

The court of appeals ruling on Fullerton v. Florida Medical Association hinges on the court’s judgment that the federal Health Care Quality Improvement Act, or HCQIA, and an analogous state statute do not protect peer reviewers of expert witness testimony because, the judges concluded, such reviews do not constitute the practice of medicine.

The court concluded, "Because neither Florida’s peer-review statutes nor the HCQIA clearly and unambiguously expresses the legislative intent that such testimony should be scrutinized by peer review, we conclude the statutes provide no immunity."

"What the appellate court ruled," Bierig explains, "was that the HCQIA was really designed to deal with credentialing in the medical staff credentialing context. At least according to this court, it wasn’t designed to deal with…the context of review of testimony in malpractice cases."

Attorney John Vail, counsel to Dr. Fullerton, agrees with that interpretation. "The gist of the decision, which parses both [federal and state] statutes fairly closely, is that they simply don’t cover testimony," he says. "They cover the delivery of medical care to patients. That’s typically what the practice of medicine is," whereas expert witnesses play "more of a forensic role."

"Witness testimony in general, and expert witness testimony in particular, have been held to be First Amendment-protected activities," adds Vail, vice president and senior litigation counsel for the Center for Constitutional Litigation, Washington, DC. "It’s protected speech. So the court went right to the text of the statutes, which it should do, and which ends the argument… You have, from early in the common law, through modern history, cases that decline to give a remedy to persons who are defamed by testimony."

The underlying reason for that is the need for people to take the witness stand and say what they believe is true without fear of consequences, Vail says. "If we allow a cause of action against them, we stem the free flow of information to courts," he says. "The system simply can’t tolerate that. We don’t even allow courts to second-guess what a witness says, with the exception of perjury prosecutions."

Pathologist Elliott Foucar, MD, of Albuquerque, NM, said in a Sept. 12 talk on expert witness testimony at CAP ’06 that the essence of what the appeals court concluded in this case is that "as far as the FMA is concerned, an expert witness doctor lying in Florida’s courts is like a doctor lying about his golf scores in the doctors’ lounge. Neither is the practice of medicine." What’s clear, he added, is that "whether the issue is golf scores or expert testimony," if the FMA were to investigate an allegation of lying, the organization, the physicians conducting the review, and the physicians filing a complaint would all have liability exposure. Dr. Fullerton’s case alleges that the Florida Medical Association set up its peer review program "to intimidate physicians who would have the temerity to testify on behalf of plaintiffs," Vail says. "These peer review programs, even if they are enacted without the intent to intimidate witnesses, have that effect. And that effect is intolerable."

The Florida ruling contradicts a June decision of the U.S. District Court for the District of Kansas, which protected a member of the American College of Obstetricians and Gynecologists who filed a complaint with that organization against an expert witness. The Kansas court ruled that the ACOG peer review process was a "professional review action" under the HCQIA. That ruling in Bundren v. Parriott, which is being appealed, is based on defamation claims by Oklahoma ACOG member and expert witness J. Clark Bundren, MD, who filed suit against Kansas obstetrician-gynecologist Joel Parriott, MD, after Dr. Parriott complained to ACOG about Dr. Bundren’s testimony.

The Kansas ruling protecting peer review mirrors the 2001 ruling of the U.S. Court of Appeals for the 7th Circuit in Chicago in Austin v. American Assn. of Neurological Surgeons, which supported the review of expert testimony by the AANS.

But the Florida court disagreed with the 7th Circuit’s interpretation of the applicability of HCQIA to peer review of expert testimony. It made several distinctions between the cases. Among them was that Dr. Fullerton was not a member of the medical association conducting the review, whereas Donald Austin, MD, was a member of the American Association of Neurological Surgeons.

"What I make of [the conflicting rulings] is that these issues are not clear, and different judges, acting in good faith, read the relevant statutes differently," Bierig says. Recalling his reaction to the 2001 Austin decision, he adds, "As I said at the time, ’This is a favorable development for peer review of medical testimony, but it’s not the end of the story.’"

Vail criticizes the Kansas and Illinois federal court rulings as lacking in analysis. "It’s just one sentence that says, ’Oh yeah, witness testimony is the practice of medicine,’" he says. "I don’t think that conclusion bears scrutiny, when you really work with the text of the statutes. It’s clearly outside the purpose of the statutes. Obviously, I don’t like either decision. I happen to think the Florida decision is right."

Dr. Foucar says one of the difficulties in developing a peer review system based on prior court decisions is that no two cases and no two courtroom settings are the same. "You might conclude that, ’We can conduct peer review without liability fears because the 7th Circuit said it was OK.’ But the next thing you know, in state court in Florida, [the judges rule], ’We don’t interpret the underlying statutes the way that the Circuit Court in Chicago does. The expert witness whose testimony is being evaluated has the right to take you to court.’"

However, Dr. Foucar notes, litigation doesn’t put an end to peer review—it just adds to its potential costs and complexity. For example, in March the American College of Radiology suspended an expert witness’ membership after an evaluation concluded that his testimony was "clinically inaccurate and scientifically incorrect."

"Some medical organizations are willing to accept the litigation risks associated with peer review," Dr. Foucar adds.

The recent Florida ruling probably will embolden other physicians whose peers critique them negatively as part of medical society review processes, Bierig predicts. "Now they have a precedent to cite that helps them," he says. "It is possible that the Florida case will encourage physicians who don’t like the evaluation of their testimony to bring actions against the association under whose auspices the evaluation was done, and the physicians who actually evaluated the testimony. Over time, this will sort itself out. But, until then, there’s going to be a lot of people getting sued."

Predicting one’s likelihood of being sued based on geographic location is tricky because lawsuits can be brought in any number of venues, Bierig says. Even if a peer reviewer is based in Kansas where there is currently favorable law for that reviewer, there’s a fairly low likelihood that the plaintiff will bring suit in Kansas.

"Let’s say a physician from Kansas negatively peer reviews testimony by a physician from Florida that was given in a case in Illinois. Where do you think the physician who believes he was defamed will sue?

"The plaintiff is, in all likelihood, going to choose the place that he thinks or she thinks is best for him or her. If there’s any connection to Florida, you’re going to see cases brought in Florida." At a minimum, Bierig says, the physician is going to sue in a forum where there is no preexisting bad law for plaintiffs in this type of case.

Among other complications in setting up a peer review process, the CAP would have needed access to someone who is able to gather and continually update information on this specialized area of law in all 50 states, Dr. Foucar says. "These cases usually at least start out in state court. Some of these courts favor the ’rights’ arguments brought by trial lawyers. Other state courts are more open to the argument that shoddy testimony damages society, and that doctors’ review of testimony improves the quality of expert testimony," he says. "It’s a very, very challenging problem. By making it so complicated and legally dangerous to evaluate expert testimony, what the courts that allow suits against reviewers are doing is essentially protecting the courts’ monopoly on the oversight of expert witness testimony."

The College would have faced unpredictability on another front, since no one has peer reviewed pathologist expert testimony before, Dr. Foucar says. "You look at the first 10 cases, and maybe none of them sue you. Maybe all of them sue you," he says. "It’s very much unlike a lot of initiatives that an organization would get into." To lobby in Washington, DC, the College needs to hire and pay lobbyists and train members to testify, but "the worst thing that can happen is your bill doesn’t get passed," he says. With peer review of testimony, "the organization and its members could end up in multiple, giant lawsuits that could drag on for years."

State legislatures are beginning to mull the issue of physician oversight of expert testimony, Bierig says, and the American Medical Association has put forth model legislation based on the principle that peer review of testimony should be considered the practice of medicine under the HCQIA. Dr. Foucar cites two mechanisms that could be used to improve the quality of expert testimony: using state medical boards to process allegations of junk testimony, or encouraging judges to seek their own unbiased experts, as needed, from organizations like the CAP.

State boards take disciplinary steps now mostly for less murky reasons than misleading expert testimony, Dr. Foucar says. "For example, it may be easier to evaluate whether someone is showing up to work drunk than to determine whether somebody’s testimony in an esoteric subspecialty was junk or not," he says. State boards approaching expert witness testimony as the practice of medicine and therefore under the boards’ disciplinary control would potentially need access to physician experts in every subspecialty area that might be the subject of malpractice litigation.

A different approach to improving the quality of expert testimony would be for judges to ask for advice when the esoteric nature of a case made evaluating what did or did not constitute junk testimony too difficult for a nonphysician, Dr. Foucar says. An organization like the CAP could offer this service if assured of liability immunity, and "if the judge says no immunity, you say, ’Our organization is not prepared financially to fight the trial lawyers. Call us back when you can give us liability immunity. Otherwise, forget it.’"

For now, given the lack of clarity, pathologists planning to participate in peer review processes would be well advised to check their insurance coverage to see if potential lawsuits for defamation or other issues would be covered, Bierig says.

"If it isn’t, the physician is going to incur tremendous expenses" if a suit is brought, he says, unless the medical association steps up to the plate. "Are they going to indemnify you for all of your legal fees, and if so, what are the conditions of the indemnification?" he says.

"Bottom line, A, this practice is risky, and B, before you do it, you’d better make sure it’s covered by your insurance policy, or you’d better see what kind of indemnification you have from any medical society under whose auspices you conduct the peer review."


Ed Finkel is a writer in Evanston, Illinois.