--
Larry R. Glazerman, MD, FACOG
Ob-Gyn at Trexlertown, PC
6900 Hamilton Blvd.
Trexlertown, PA 18087-0060
610-402-0161
larry.glazerman@lvh.com
_____
From: ob-gyn-l@obgyn.net [mailto:ob-gyn-l@obgyn.net] On Behalf Of
DoctorJoe@aol.com
Sent: Monday, June 07, 2004 6:17 PM
To: Multiple recipients of list OB-GYN-L
Subject: Doctors turning on doctors! What happened to professional courtesy?
LOL
Monday, June 7, 2004
Doctor wants fellow doctor suspended over malpractice testimony
By KATHY GEORGE <mailto:kathygeorge@seattlepi.com>
SEATTLE POST-INTELLIGENCER REPORTER
When Dr. Christopher Smythies was sued for malpractice, he spent $550,000
defending himself and faced losing everything he owned.
But the hardest part, he said, was hearing his former patient and her hired
expert call him a bad doctor.
"It was emotionally a very difficult time for me, probably the worst in my
life," said the Renton neurosurgeon, who convinced the jury that he handled
the woman's tumor correctly.
Now Smythies is striking back at the fellow doctor whose expert opinions in
the case were based, according to the state Court of Appeals, on hazy
recollections instead of established science.
Reflecting a new -- and controversial -- national trend, Smythies has asked
his medical association to suspend or terminate the membership of the hired
witness, Dr. Robert Rand of Los Angeles, for violating the association's
expert testimony standards.
It's doctors against doctors, for a change, instead of doctors against
lawyers as usual.
And while still rare in Washington state, it is a quietly growing phenomenon
around the country. Not only are more medical specialty groups policing what
their members say on the witness stand, but more doctors are taking
advantage of new opportunities to put their peers' opinions on trial.
"My goal is to try and improve the quality of testimony ... on the plaintiff
and defense side," said Smythies, adding that "bogus testimony" from doctors
has fueled the much-decried problem of soaring malpractice insurance rates.
But the trend alarms some patients and their lawyers, who say the added peer
pressure may stop doctors from speaking out even in clear cases of
negligence.
It's a problem, they say, because proving medical malpractice requires
showing that a doctor failed to meet the prevailing standard of care. And
only a doctor's peers can define that standard.
Judy Massong, a medical malpractice lawyer and president of the Washington
State Trial Lawyers Association, said the trend will make it harder for
victims to prove negligent blunders. "It's the conspiracy of silence," she
said.
"It's bad for their profession," said Gary Friedman, a Florida lawyer who
had counted on using Rand's testimony in a different malpractice suit only
to lose him at the last minute due to the threat of peer punishment. "It's
bad for the justice system. And what's worse, it's bad for the injured
patients."
Nationally, the American Association of Neurological Surgeons has led the
way in punishing its members for expert testimony that it considers
professionally unsound.
In the 20 years since the association's program started, it has reviewed
about 40 complaints about expert testimony and disciplined 21 neurosurgeons,
said the association's general counsel, Russ Pelton.
The intent is to discourage association members from giving uninformed,
financially motivated or scientifically wrong testimony -- regardless of
whether it favors or opposes fellow doctors, he said.
Under association guidelines, neurosurgeons should be familiar with all the
facts of a case and not just rely on an attorney's summary. They should be
neutral observers, not advocates for whoever hires them.
Also, if they offer a minority viewpoint, they had better make sure jurors
understand that most doctors disagree with them. A neurosurgeon spurning
these guidelines can be stripped of association membership and the
considerable prestige that goes with it.
Rand, the doctor who testified against Smythies, is especially familiar with
the process. The association suspended him once before in what Pelton called
"one of the more egregious examples" of an expert witness contradicting
established views.
In that case, Rand said a boy would have survived if he'd been given a
steroid, although guidelines sent to all neurosurgeons had warned that the
steroid itself could be lethal, Pelton said. Rand, a former UCLA professor,
later admitted "he never read that stuff" about the current scientific
thinking, the association lawyer said.
Rand, called several times at his home and office over the last two weeks,
could not be reached for comment. In the Smythies case, Rand testified that
the patient probably wasn't irreversibly paralyzed as Smythies thought, and
that her tumor should have been removed immediately despite what Smythies
considered unacceptably high risks.
Rand, the only expert for the patient, admitted that no medical literature
supported his view. And the Washington Court of Appeals said, "Dr. Rand's
opinion about the standard of care was based on his own admittedly limited
experience with other patients. He could not specifically remember the
particular patients, could not remember the time interval between the onset
of symptoms and surgery, nor could he elaborate on the extent of the
patients' deficits."
The woman who sued Smythies became paralyzed after a different doctor
performed spinal fusion surgery for back pain. Her doctor then brought in
Smythies, who determined that immediate surgery wouldn't help. Smythies
waited a couple of days to remove her tumor because he thought reduced
swelling would make the surgery safer, according to court records.
Rand is considered one of the nation's top experts in pediatric
neurosurgery, and his scientific publications have been influential, his
supporters and detractors agree.
That's why Friedman, the Florida lawyer, sought his help with a suit against
a leading New York neurosurgeon accused of negligently causing permanent
brain damage in a girl.
The defendant in that case had such a strong reputation that only an expert
of equal stature could have persuaded the jury, Friedman said. But Rand
withdrew at the last minute and returned his witness fees because he was
afraid of discipline by the neurosurgeon association.
"I couldn't get another neurosurgeon in the North American continent or in
Europe who was competent to testify," said Friedman, adding that the
chilling effect on testimony forced him to settle the suit at a discount.
"How was that good for that little girl?"
Pelton said the only chilling effect is on irresponsible testimony.
In recent years, more medical societies have begun following the
neurosurgeons' lead in scrutinizing expert testimony by their members, said
Dr. Ben Blackett of Tacoma, a neurosurgeon and lawyer who leads the national
neurosurgeon association's testimony review committee.
The American Medical Association now supports using erroneous testimony as a
basis for state discipline. And in this state, the Medical Quality Assurance
Commission, which licenses doctors, now looks at allegations of invalid
testimony.
Among neurosurgeons, complaints about expert testimony are increasing, said
Blackett.
"We had six hearings this spring, and I anticipate six more this fall," he
said, adding that in the past, only one or two cases a year was typical.
The increase is partly due to frustration with higher malpractice insurance
rates. It also stems from a 2001 court ruling upholding the association's
testimony review program.
The Seventh U.S. Circuit Court of Appeals rejected claims by Detroit
neurosurgeon Donald Austin that his suspension from the Chicago-based
association was motivated by "revenge" and violated Illinois law.
Austin's annual income as an expert witness dropped from $220,000 to $77,000
after he was suspended for malpractice testimony against a fellow
neurosurgeon. He argued that the program was designed to protect association
doctors at the expense of innocent victims of negligence.
But the court said that in discouraging "shoddy testimony" in malpractice
cases, the association actually "furthers rather than impedes the cause of
justice."
Smythies agrees.
"If you pay someone enough money, they'll say anything," he said. "You've
got to have the threat of repercussions for hired guns. Otherwise, the whole
system is a joke."
[Editor's Note: the headline on this story has been corrected since it was
originally published]
P-I reporter Kathy George can be reached at 206-448-8334 or
<mailto:kathygeorge@seattlepi.com> kathygeorge@seattlepi.com
