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american lawyer media news service Miami-Personal injury attorney Gary Friedman of Coral Gables, Fla., thought he had an unimpeachable expert witness to call this spring in a medical malpractice lawsuit on behalf of Cristine del Cueto, a 3-year-old Miami girl crippled during brain surgery at New York’s Columbia Presbyterian Medical Center in October 1995. With trial set to begin in a New York courtroom on April 9, Friedman, a partner at Friedman & Friedman, had arranged for Dr. Robert Rand, a well-known neuro-oncologist, former professor of neurosurgery at the University of California at Los Angeles and current associate medical director of Santa Monica, Calif.’s John Wayne Cancer Institute, to fly from California to testify for the plaintiff. On March 10, Friedman’s mail included a letter of apology from the doctor. “I have been informed by the senior neurological society to discontinue expert testimony for plaintiffs or risk membership,” Rand wrote. “Therefore I am withdrawing as your expert.” Along with the letter was Friedman’s witness-fee check to Rand, neatly cut in half. “He was our centerpiece,” said Friedman, who moved to postpone the trial. Rand withdrew from the del Cueto case after the American Association of Neurological Surgeons sanctioned him for his testimony for plaintiffs in an unrelated, Midwest medical malpractice case. “It was implied that they didn’t like my plaintiff-side testimony,” Rand said. “There was no point in aggravating them any further. They write the rules.” The case ended up settling “at a discount,” Friedman said. “They got to him. You expect [the defense] to attack your witnesses in the courtroom. Now, they’re trying to do it through their medical societies.” Scrutiny on the rise Friedman’s experience isn’t an isolated one. With the support of the American Medical Association (AMA), physician groups in Florida and across the country are stepping up scrutiny and pressure on their colleagues who testify in malpractice cases, particularly those who work for plaintiffs. In some cases, medical associations are taking disciplinary action against expert witnesses. In February, the American Society of Anesthesiologists began planning for a process “that could deal with outrageous expert medical testimony by ASA members,” wrote President-elect Dr. Roger Litwiller in the society’s newsletter. The group is scheduled to vote on the new process at its annual meeting in October. In June, at the AMA’s annual meeting in Chicago, state and medical specialty groups within the AMA House of Delegates pushed for a bundle of measures to toughen oversight of expert witness testimony. The AMA passed a resolution specifically aimed at expert witnesses in tobacco-related litigation. It called for the creation of “a mechanism to investigate claims of false statements by physicians” in such cases, as well as the identification of “the means to involve concerned state and specialty medical societies . . . and to inform appropriate state medical licensing boards of any actions taken.” Other resolutions called for mandatory guidelines for training and credentialing medical expert witnesses, the establishment of a peer review process to sanction doctors who give “false and/or egregious testimony” and the creation of state registries of doctors who serve as expert witnesses. Like a number of other state medical associations, the Tallahassee, Fla.-based Florida Medical Association, in the past 18 months, has activated a system to track and punish physicians who provide allegedly fraudulent expert testimony against their colleagues. In addition, Florida doctors-both under the auspices of the medical association and on an ad hoc basis-have begun publishing lists of physicians who testify for plaintiffs. Plaintiffs’ lawyers say the goal is to discourage doctors from giving expert testimony for malpractice plaintiffs. The association says doctors who provide competent and truthful testimony have nothing to fear. The organization links its heightened interest in expert testimony to doctors’ higher liability insurance premiums. Unchecked improprieties in expert testimony, the group contends, have contributed to unmerited and excessive awards that drive up premiums. In the doctors’ view, medical malpractice litigation is rife with bogus testimony that the courts have failed to weed out, so medical associations must do the job for them. “Experienced testifiers are real smooth on the stand-too smooth for judges and juries to discriminate the truth,” said Florida Medical Association Secretary Dr. Dennis Agliano, a Tampa surgeon who chairs its tort reform committee. He insists that the effort will scrutinize plaintiffs’ and defense experts equally. “Who is better prepared to evaluate medical testimony” than doctors, he said. “We’re not for changing the jury system. You can testify all you want. But falsely-then you’ve crossed the line. That leaves it to other doctors to deal with them.” But Neal Roth, a plaintiffs’ attorney and partner at Grossman & Roth in Miami who co-chairs the Academy of Florida Trial Lawyers’ medical malpractice committee, has referred to the Florida Medical Association effort as a “witness-tampering program.” He said that “the whole idea is to create an atmosphere in which doctors are afraid to testify.” Already, plaintiffs’ attorneys say it is difficult to find expert witnesses among physicians who practice in the same state as defendant doctors. As the traditional social and professional pressure increasingly is coupled with the new threat of disciplinary sanctions, plaintiffs’ lawyers say, expert witnesses are becoming even harder to find-making it much tougher to litigate malpractice cases. Under the Florida Medical Association’s peer review system, complaints about members’ expert witness testimony are brought to a committee on ethical and judicial affairs, which assigns them for evaluation by an expert in the same field as the doctor being testified against. Depending on the expert’s report, the committee may call for a hearing, featuring the doctor who provided testimony and the doctor who was the defendant in the malpractice case. The committee then reports to the association’s board of governors, which may take disciplinary steps ranging from letters of concern to suspension or expulsion from the medical society. The association has yet to issue any sanctions, Agliano said, since it only began investigating complaints about 18 months ago. But its counsel Jeff Scott said that there are “many complaints going through the system right now.” In handling these cases, he insisted, his association is very concerned about protecting the due process rights of those accused of improprieties. “This is not a lynch mob,” Scott said.

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