Re: Doctors turning on doctors! What happened to professional courtesy?
From: art fougner, md (evsono@pipeline.com)
Tue Jun 8 08:31:48 2004
"We have met the enemy ... and they is us!"
Walt Kelly "POGO"
At Mon, 07 Jun 2004, Joe wrote:
>
>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
>>
--
art fougner, md
ich bin ein New Yorker
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