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A Florida radiologist who faces a medical malpractice lawsuit has admitted mailing a radiologist who is a key plaintiff witness in the case an article advocating the blacklisting of radiologists who testify against their colleagues. Now, attorneys for the defendants are seizing on Miami-Dade Circuit Judge Gill Freeman’s comments during a recent status conference on the case — that she considered the sending of the article “threatening” — to seek the judge’s recusal. In a Nov. 6 letter, Dr. Carol Adami, one of the defendants in the lawsuit, admitted that she sent the article to Dr. G.W. Eklund, a Wisconsin-based authority in the field of mammography for whom a standard mammographic technique is named. Based on the mailing of that article to Eklund, attorneys for the plaintiffs moved for sanctions in the case, asking Judge Freeman to strike the testimony of the radiology expert witness for the defense. The Sept. 11 plaintiffs’ motion described the sending of the article as “a barefaced attempt by the defendant radiologists to intimidate the doctor to convert him from testifying on behalf of the plaintiffs.” Physicians who testify against other physicians have become a target of medical professional societies, including the Florida Medical Association. The FMA and other doctor groups have launched efforts to sanction doctors whom they claim are providing improper expert testimony. They contend that such efforts are needed to correct judges’ failure to weed out bogus testimony. Leaders of the plaintiff bar have described the doctors’ efforts as witness tampering, but formal complaints to that effect are rare. ‘SHUN THEM’ The article sent to Eklund was titled “Say no to peers who weaken mammography,” from the August issue of the medical journal Diagnostic Imaging. It was written by Washington, D.C., radiologist Mark Klein. “It is the willingness of radiologists to testify against their colleagues that perpetuates this madness,” Klein wrote. “It’s past time to let them know it’s not OK. … Shun them at professional meetings. Let them and their colleagues know that you know what they do. … Vote with your dollars; refuse to attend meetings in which they participate and raise your voice against this small but deadly group who threaten our ability to do our jobs.” The envelope in which the article mailed to Eklund arrived was postmarked Aug. 16 in Fort Lauderdale, bearing the return address of Dr. Kathy Schilling, a partner and medical director at Boca Radiology Group. Schilling denied sending the article. Despite receiving the mailing, Eklund testified at a Sept. 8 deposition conducted by the plaintiff lawyers. In an interview, Eklund said his “natural inference” on receipt of the article was that “someone was trying to discourage me from testifying.” In her Nov. 6 letter, Adami confessed her role in sending the article to Eklund. The confession came in a letter sent by her attorney, Cary Capper, a partner at Wicker Smith O’Hara McCoy Graham & Ford in Miami, to attorney Gary Farmer Jr., a partner at the Fort Lauderdale-area firm Freedland Glassman Farmer & Sheller, which represents the Gilarmo family. Witness tampering is a third-degree felony under Florida law, punishable by up to five years in jail and fines of as much as $5,000. In his motion for sanctions against the defendants, Gilarmo’s attorney, Freedland Glassman partner Michael Freedland, asked that at a minimum, the defendants’ expert witness on radiology be struck and that the person who sent the article be held in contempt. “The gist of the article is ‘You testify against us and we’re going to rise up against you,’ ” Freedland said. “ The intent is clear. What really gets [the defendants'] goat is that [Eklund] is one of the most respected mammographers in the world. It scares them.” The alleged witness tampering occurred in the case of Marsha Gilarmo, a 45-year-old Palm Beach County mother of three who is suing Boca Raton-based Boca Radiology Group and two of its individual physicians, Adami and Dr. Vincent Mazzeo. The suit contends that the defendants misread Gilarmo’s mammograms and failed to diagnose her life-threatening breast cancer. Gilarmo’s husband and children also are claiming damages for loss of consortium. As a result, the suit alleges, Gilarmo has endured needless physical and mental pain and suffering, unnecessary hospitalizations and medical procedures and costs, including a double mastectomy, and a reduced life expectancy. She claims that early detection would have led to a high likelihood of successful treatment. Freedland said that because the cancer went undetected, it spread to Gilarmo’s lymph nodes and other areas. Her rate of survival would have been 90 percent if the cancer had been caught in time, but now it’s only about 7 percent, he said. Other defendants in the suit are Boca Raton Community Hospital, where the group is the sole provider of outpatient radiological diagnostic services, and Dr. Leonard Roudner and his professional association, where Gilarmo also received treatment. In a memorandum of law in opposition to the sanctions, Capper argues, “there is no evidence of record that Dr. Eklund was threatened or intimidated by receipt of the article … [and] that there has been no effect whatsoever on the plaintiff’s ability to prosecute her case.” During a contentious Nov. 14 status conference on the case, defense attorneys argued for a gag order on news coverage of the witness tampering allegation. They contended that the plaintiff attorneys were using the explosive charge to force a settlement of the lawsuit. Judge Freeman refused to issue a gag order. But during the discussion, she made passing reference to “this wrongdoing,” according to a transcript. When Capper asked her what the basis was for her language, Freeman replied: “Because I think it was threatening, OK?” On Nov. 24, Capper filed a motion seeking Freeman’s recusal. He declined to discuss the case. Adami is scheduled to be deposed on the matter Wednesday before Judge Freeman. Eklund also is to be deposed on the effect of the letter, though no date for that has been set. But the recusal motion pre-empts all other action in the case. So any decision on sanctions — in fact, the case as a whole — will be stalled until the question of recusal is decided. And however Freeman decides on recusal is likely to be appealed. So the witness tampering issue is not going to be resolved for some time.

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