Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001)
Issue
The issue in this case was whether a medical society could discipline one of its members for testifying falsely as an expert witness.
AMA interest
The AMA supports the right of medical associations to set standards for honest expert testimony by physicians and to sanction those members who violate these standards.
Case summary
The American Association of Neurological Surgeons (AANS) had suspended Dr. Austin from membership for six months because, it found, he had testified against another physician in a suit alleging professional liability without a reasonable basis for his testimony. This was a violation of the AANS code of ethics and expert witness guidelines.
The Seventh Circuit Court of Appeals affirmed the lower court’s ruling, holding that, since AANS had accorded Dr. Austin due process and had acted in good faith, he had no grounds for complaint. There is nothing wrong, it said, in having a professional association sanction one of its members for irresponsible testimony. In fact, professional self-regulation furthers, rather than impedes, the cause of justice. Dr. Austin’s testimony at trial was a type of medical service, and the poor quality of that medical testimony probably reflected the generally poor quality of his medical judgment. Moreover, because membership in AANS is not a precondition to the practice of neurosurgery, his membership did not implicate an important economic interest that might otherwise justify judicial intervention.
Litigation Center involvement
The Litigation Center filed an amicus curiae brief to support AANS. The brief argued that a physician’s expert medical testimony is an aspect of medical practice. The AANS ethical code was therefore a legitimate, good faith guideline for proper professional conduct. The brief also argued that AANS had a constitutionally protected right to choose those persons with whom its members would associate.
View the brief (PDF, 39KB).
Glenn v. Plante, 676 N.W.2d 413 (Wis. S Ct. 2004)
Issue
The issue here was whether a court may require a physician to testify as an expert witness, against the physician’s wishes. The plaintiffs contended, and the trial and lower level appellate courts held that “compelling circumstances” justified such compulsory testimony. Those compelling circumstances were the plaintiffs’ attorney’s negligent failure to obtain a willing expert witness within the time allowed by the trial court’s scheduling order.
AMA interest
Although the AMA, as a matter of public interest, encourages its members to serve as impartial expert witnesses, the AMA supports the right of physicians to choose not to testify as expert witnesses.
Case summary
Dr. Michael Plante was an obstetrician/gynecologist for patient Sinora Glenn. He provided her with certain medical services, including a hysterectomy. Following the hysterectomy, Mrs. Glenn went to a new physician, Dr. Charles H. Koh.
Mrs. Glenn and her husband, Christopher Glenn, sued Dr. Plante for medical malpractice. Dr. Koh wrote a letter to the court on the Glenns’ behalf, stating that Dr. Plante’s medical procedures, including the hysterectomy, had been inappropriate and unwarranted. In that same letter, though, he stated that he did not want to testify in court against another physician. Subsequently, he wrote a letter to the Glenns’ attorney, indicating that Dr. Plante’s treatment of Mrs. Glenn had been “unusual and may not meet the standard of care.” The second letter reiterated that he “would not be an expert witness.”
The court entered a scheduling order, which set a date by which the Glenns were to name their expert witnesses to the court. The Glenns listed Dr. Koh. Eventually, the case was reassigned, for various reasons, among several judges.
Ultimately, the Glenns asked the court for an amendment to the scheduling order to give them additional time to locate an expert witness more willing to testify than Dr. Koh. Simultaneously, Dr. Plante moved to dismiss, because of the Glenns’ failure to name an expert witness who was actually willing to testify.
The court denied the Glenns’ motion, finding that they did not have a justifiable excuse for extending the expert witness deadline. However, the court also determined, in a lengthy, written opinion, that “Dr. Koh is a treating physician whose opinions/testimony concerning his treatment of Ms. Glenn is unique and therefore should be compelled.” Dr. Plante’s motion to dismiss was denied, and he appealed that ruling to the Wisconsin Court of Appeals. The Glenns did not appeal from the denial of their motion to amend the scheduling order,
The Court of Appeals noted that, under Wisconsin law, an expert witness can be required to testify only under compelling circumstances. It further noted that the trial judge had grounds to deny the motion to amend the scheduling order, that Dr. Koh’s expert testimony was being required on matters that could be derived from the medical record and therefore would be evident to any obstetrician/gynecologist, and that the failure to comply with the scheduling order arose from the neglect of the Glenns’ counsel.
However, it also found that the determination of compelling circumstances was inherently a fact-sensitive decision, largely within the trial court’s discretion. It observed that “if Dr. Koh’s testimony were disallowed in this case, he still could be called to testify regarding Dr. Plante’s treatment of Ms. Glenn in the ‘suit within a suit’ that, in all likelihood, would be litigated in the course of a legal malpractice action.” Finally, it opined that, were the Glenns prohibited from calling Dr. Koh, their case would “inevitably” be dismissed, a “particularly harsh sanction.”
The Court of Appeals affirmed, holding that the trial court was within its discretion in finding compelling circumstances to require Dr. Koh’s testimony. One appellate judge dissented. Dr. Plante appealed to the Wisconsin Supreme Court.
The Wisconsin Supreme Court reversed the Court of Appeals and the trial court, holding that the Glenns had not shown compelling circumstances to force Dr. Koh to appear as an involuntary expert witness. It remanded the case to the trial court.
Litigation Center involvement
The Litigation Center, through the AMA and the Wisconsin Medical Society, filed an amicus curiae brief, in the Wisconsin Supreme Court, pointing out that Dr. Koh had an inherent right to withhold his services as an expert witness and that the circumstances of this case were not sufficiently compelling to require him to testify against his will.
View the brief. (PDF, 77KB)
Yancey v. Weis, Hardten and American Academy of Ophthalmology (Hennepin Cty., Minn.)
Issue
The issue in this case was whether a medical society could discipline one of its members for testifying falsely as an expert witness.
AMA interest
The AMA supports the right of medical associations to set standards for honest expert testimony by physicians and to sanction those members who violate these standards.
Case summary
The American Academy of Ophthalmology has adopted a code of ethics, under which a physician who provides false, deceptive or misleading testimony as a medical expert may be subject to disciplinary sanctions. Dr. Charles Yancey, an AAO member, received notice of an ethical investigation based on a complaint filed by Drs. Weis and Hardten after he testified as an expert in a medical malpractice suit. Dr. Yancey sued AAO and Dr. Weis and Dr. Hardten for defamation, interference with business opportunities, and witness tampering.
On Feb. 21, 2008, the court granted AAO’s motion for summary judgment and dismissed plaintiff’s claims against AAO. The court granted partial summary judgment in favor of Drs. Weis and Hardten on the witness tampering and interference with business opportunity claims but denied summary judgment for them on the defamation claims. The case is proceeding to trial against them on those issues.
Litigation Center involvement
The Litigation Center assisted AAO with technical legal support.
Zito v. Zabarsky, 812 N.Y.S.2d 535 (N.Y. Sup. Ct., App. Div. 2006)
The Litigation Center joined with the Medical Society of the State of New York in an amicus curiae brief that opposed the admission of “junk science” in a medical malpractice lawsuit against a physician.
The Plaintiff, Pamela Zito, sued her physician, Dr. Gary Zabarsky, for medical malpractice, alleging that she had developed polymyositis, an autoimmune disease, as a result of Dr. Zabarsky’s improper prescription of the statin drug Zocor, a cholesterol lowering medication. Dr. Zabarsky had prescribed Zocor at the highest recommended daily dose of 80 milligrams. Soon thereafter, Zito began experiencing pain in her joints, weakness, and shortness of breath. When her blood samples exhibited elevated levels of creatine phosphokinase (“CPK”), Dr. Zabarsky discontinued the Zocor therapy. She was then diagnosed with polymyositis.
Zito alleged that Dr. Zabarsky had departed from accepted medical practice by prescribing an “excessive dose” of Zocor, thereby causing her polymyositis. As Zito’s theory of causation involved a question of “scientific novelty,” the trial court held a voir dire hearing to determine the admissibility of her proffered expert testimony. At this hearing, Zito’s medical expert employed a causation theory involving multiple steps and inferences. He first testified that one of the possible side-effects of statin drugs is myopathy, a muscular disease characterized by increased levels of CPK. Following her use of Zocor, Zito had elevated levels of CPK, which may have caused the release of certain intracellular constituents. These intracellular constituents in turn caused a release of antigens, and Zito’s immune system responded by producing “anti-jo-1” antibodies. These antibodies led to the onset of polymyositis.
Zito’s medical expert claimed, without citing any scientific literature, that it was “established to a degree of pharmacological certainty” that: (1) statins cause myopathy and (2) myopathy is characterized by increased levels of CPK. Based on these “generally accepted scientific principles,” Zito “reasoned” that the release of CPK would be concurrent with the release of other intracellular constituents, which would ultimately cause an immune system reaction leading to polymyositis.
In support of his reasoning, Zito cited a single case study published in The Lancet in 1997 that recounted the onset of polymyositis in “one patient” after he had received a 20-milligram dose of Zocor. This case study, however, contained several notable differences from Zito’s case. For instance, in the case study, the patient had transitory polymysositis, which went into remission after a few days of steroid treatment without relapse. Zito’s condition was permanently disabling polymyositis. The case study patient had also tested negative for the “anti-jo-1” antibody, which was a critical component of the hypothesis espoused by Zito’s medical expert. Finally, the case report patient revealed “considerable variation in fibre size, muscle-fibre necrosis and fragmentation, and abundant inflammatory cell infiltration.” Zito’s biopsy, however, was unremarkable and showed no evidence of inflammation or drug-induced toxicity.
The trial court ultimately disallowed the testimony of Zito’s medical expert, because no scientific literature expressly reported a causal nexus between excessive doses of Zocor and the onset of polymyositis. The single case study, the court found, was insufficient to support the claimed nexus. As a result of the preclusion of Zito’s medical expert, the trial court entered a judgment in Dr. Zabarsky’s favor. Zito then appealed the decision precluding her medical expert to the Appellate Division of the New York Supreme Court.
The Appellate Division reversed and remanded for trial, holding that an expert need not base his or her opinion on medical causation on established scientific literature. A single case study, coupled with “scientifically accepted methodology and reasoning” is sufficient. The court indicated its concern that plaintiffs who sue defendants based on new medical theories would be disadvantaged, as there would be few studies in the scientific community to support their allegations. Dr. Zabarsky then asked the Appellate Division to reconsider its decision reversing the trial court’s ruling. In the alternative, Dr. Zabarsky requested certification for appeal to the New York Court of Appeals.
The amicus brief, which was submitted in support of Dr. Zabarsky’s motion for reconsideration or certification, pointed out: (1) the lone case study did not support Zito’s theory of causation, as it pertained to a single, distinguishable incident, (2) there was no scientific proof of Zito’s theory of causation, (3) the medical expert made no attempt to rule out alternative causes, (4) the decision conflicted with existing New York legal standards of scientific reliability, and (5) Zocor was well established and was far from the type of “new drug” that might arguably justify a relaxation of existing legal standards.
The Appellate Division denied the motion for reconsideration or certification, without discussion.
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