Re: Doctors turning on doctors! What happened to professional courtesy?
From: Joe (forcep@intercom.net)
Mon Jun 7 20:18:41 2004
You are absolutely correct,Larry.
Larry Glazerman wrote:
> It’s about time. It’s sad that the lawyer in this case feels that “the
> chilling effect on testimony caused him to settle the suit at a
> discount.” It’s a clear example of the plaintiffs’ lawyers not caring
> about the medicine or science in a case, only being interested in the
> $$. One wonders why this lawyer couldn’t get another doctor in North
> America or Europe to testify? I guess he doesn’t accept the
> possibility, remote as it may be, that there really was no negligence,
> just an unfortunate bad outcome.
>
> 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
> 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
> kathygeorge@seattlepi.com
>
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