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Expert Witnesses

Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001)

Also under Medical society advocacy and Peer review

Outcome:     Very favorable

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. His testimony violated the AANS code of ethics.

Dr. Austin sued AANS, and the trial court held against him. 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.

United States Court of Appeals for the Seventh Circuit brief

Edwards v. The Sunrise Ophthalmology ASC, LLC (Fla. S.Ct.)

Also under Affidavit of merit, Professional liability

Issue

The issue in this case is whether a specialist in infectious diseases was qualified under the Florida Malpractice Law, FL Stats. § 766.102, to testify as an expert witness in a suit brought against an ophthalmologist for medical negligence.

AMA interest

The AMA believes that expert witnesses in medical liability cases should have education, training, and experience or board certification in the same field as a defendant specialist physician.

Case summary

Marianne Edwards underwent plastic surgery on her eyelid. She subsequently contracted a bacterial infection in her eyelid, where the surgery had been performed. This resulted in her having to undergo additional surgery and suffering disfigurement.

Ms. Edwards filed a medical malpractice suit against, inter alia, her ophthalmologist, Gil A. Epstein, MD and The Sunrise Ophthalmology ASC, LLC. She contended that Dr. Epstein had breached the standard of care, because he had failed to use proper sterilization techniques during the surgery, and this caused the infection. Ms. Edwards proffered an affidavit from an infectious disease doctor to support her contention.

Dr. Epstein challenged the sufficiency of the affidavit through a motion to dismiss. He pointed out that §766.102 requires that expert testimony offered against a specialist must be from an expert who either (a) specializes in a similar specialty as the defendant physician or (b) evaluates, diagnoses, or treats the medical condition that is the subject of the claim. Because he was an ophthalmologist, which is a distinct specialty from that of the infectious disease expert, Dr. Epstein argued that Ms. Edwards’s affidavit was insufficient.

The trial court agreed with Dr. Epstein and the complaint was dismissed as to him. Ms. Edwards appealed to the Florida District Court of Appeal. By a split decision, the District Court of Appeal affirmed. The case is now on appeal to the Florida Supreme Court.

Litigation Center involvement

The Litigation Center, along with the Florida Medical Association filed an amicus brief, which will argued against allowing the expert witness testimony of the infectious disease physician.

Florida Supreme Court brief

Fullerton v. Florida Medical Association, 938 So.2d 587 (Fla. Dist. Ct. App., 1st Dist. 2006)

Also under Abusive litigation against physicians and Peer review

Outcome:     Somewhat unfavorable

Issue

The primary issues in this case are (a) whether members of medical societies should be able to consult with those societies if they feel they have been harmed by false expert witness testimony and (b) whether medical societies should be able to investigate physicians who have been accused of giving false expert witness testimony, for the purpose of taking appropriate action.

AMA interest

The AMA supports the right of physicians to consult with their medical societies when they believe they have been harmed by another physician’s false expert witness testimony.  The AMA also supports the right of medical societies’ peer review programs to investigate complaints of false expert witness testimony by physicians.

Case summary

The case arose out of expert witness testimony that Dr. John Fullerton had given for the plaintiff in a professional liability suit against three physicians.  The court found that the physicians were not liable.  Subsequently, these physicians complained to the Florida Medical Association (“FMA”) that Dr. Fullerton's testimony fell "below reasonable standards" and had been provided "for the sole purpose of propagating a frivolous lawsuit for financial gain."  They asked FMA to review the testimony under its expert witness peer review program and determine whether it comported with professional standards.  They further asked that, if the testimony was found to be substandard, FMA submit its findings to the Florida Board of Medicine for proper disciplinary action.

In response, Dr. Fullerton sued FMA and the three physicians in the Circuit Court of Leon County, Florida.  He stated that the defendants-physicians’ assertions were not true and contended that the FMA expert witness peer review program was “intimidating, hindering, and deterring persons, including Plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice.”  He did not allege, however, that the defendants-physicians' letter of complaint to FMA had been sent in bad faith or that they lacked a reasonable basis for their belief that Dr. Fullerton had testified "below reasonable standards" and in support of a frivolous lawsuit.

The trial court dismissed the lawsuit for failure to state a cause of action but granted Dr. Fullerton the right to file an amended complaint.  Dr. Fullerton then filed an amended complaint against only FMA. 

A final and appealable judgment was entered in favor of the individual physicians, which Dr. Fullerton appealed.  The District Court of Appeal reversed the trial court, finding that neither FMA nor the three physicians were immunized from liability by the state peer review law or the Federal Health Care Quality Improvement Act.  In this ruling, the court did not discuss whether the three physicians’ complaint was a non-actionable statement of opinion or whether they were protected under state and federal constitutional guarantees of free expression and free association.

After FMA and the three physicians asked the District Court of Appeal to reconsider its decision, the court entered a revised ruling, which largely restated the court’s earlier decision, but also specified that FMA and the physician defendants would be allowed, on remand to the trial court, to argue a defense based on protections provided by the constitution and case law precedent.

Litigation Center involvement

The Litigation Center contributed to the defense costs of the defendant physicians and filed a brief as amicus curiae to support the individual physician defendants in Dr. Fullerton’s appeal. 

District Court of Appeal for the State of Florida brief.

Fusco v. Shannon, 438 Md. 24 (Md. 2014)

Outcome:    Favorable

Issue

The issues in this case were whether (a) a trial judge abused his discretion by refusing to allow a pharmacist to testify in a liability suit brought against a physician that the physician had failed to obtain his patient’s informed consent, and (b) whether the physician’s failure to disclose that a drug was not FDA approved for the patient’s condition was a material risk that should have been disclosed to the patient.

AMA interest

The AMA believes that an expert witness who testifies against a physician in a medical liability case should have comparable education, training, and occupational experience in the same field as the defendant or have specialty expertise in the disease process or procedure at issue in the case. The AMA further believes that the official labeling statements approved by the FDA establish the parameters governing advertising or promotion of the drug product but should not be regarded as a legal standard of acceptable or accepted medical practice.

Case summary

Anthony Fusco was diagnosed with prostate cancer. After two years of “watchful waiting,” Mr. Fusco, with the advice of his regular urologist, elected a combination of radiotherapy and hormone treatment. Following various referrals, he consulted with Kevin Shannon, MD, a hematologist/oncologist.

Dr. Shannon suggested that Mr. Fusco be treated with Amifostine, a drug that would reduce the risk of radiation damage to Mr. Fusco’s bladder and rectum. Dr. Shannon advised Mr. Fusco that Amifostine could cause potential side effects, including “a local or slightly more extensive skin reaction.” Dr. Shannon informed Mr. Fusco that there were no alternatives to Amifostine. Although Amifostine had not been FDA-approved for protection against injury arising from radiation therapy treatment, Dr. Shannon did not advise Mr. Fusco of this non-approval.

Mr. Fusco received the radiation therapy, and he was also treated with Amifostine. Unfortunately, he developed, first, an acute systemic rash and lip swelling, then a more severe skin reaction, known as Stevens - Johnson Syndrome, and then a yet more severe skin condition known as Toxic Epidermal Necrolysis Syndrome. He died of a stroke, with the medical examiner listing Toxic Epidermal Necrolysis Syndrome as a contributing cause of death.

Mr. Fusco’s estate and his widow sued Dr. Shannon and his practice group. The plaintiffs claimed that Dr. Shannon had failed to obtain Mr. Fusco’s informed consent prior to administration of the Amifostine, and the Amifostine therapy had been a factor in Mr. Fusco’s demise. As an expert witness, they proffered a doctor of pharmacy, who was not a medical doctor. The pharmacist was prepared to testify: (a) It was inappropriate for Dr. Shannon to have used Amifostine for a patient, such as Mr. Fusco, who was undergoing treatment for radiation therapy for prostate cancer. Amifostine therapy was only successful in patients diagnosed with head, neck, and kidney cancer, but not prostate cancer, and (b) The FDA had not approved Amifostine to protect against injury arising from radiation therapy treatment. Thus, the plaintiffs alleged, FDA non-approval was a material risk associated with the Amifostine treatment, and Mr. Fusco should have been advised of that risk.

The defendants challenged the pharmacist’s qualifications as an expert witness, and the trial judge barred his testimony. The judge found that the pharmacist’s putative testimony would have been more aligned with negligence than informed consent and, further, the pharmacist was unqualified to give expert testimony against a physician, because the pharmacist lacked a medical degree. The case was subsequently tried before a jury, which rendered a verdict in favor of the defendants. The plaintiffs then appealed to the Maryland Court of Special Appeals, the intermediate-level appellate court in Maryland.

The Court of Special Appeals noted that the sufficiency of expert witness qualifications ordinarily falls within the discretion of the trial judge. The court further noted that “[w]e have not found any Maryland cases concerning whether a pharmacist is qualified to testify regarding a prescription drug in an informed consent action [and] this issue is one of first impression in Maryland.” However, it then observed that similar situations had arisen in other states; sometimes pharmacists had been allowed to testify as expert witnesses in professional liability cases against physicians and sometimes not. Generally, the court concluded, pharmacists were allowed to testify in claims based on lack of informed consent, but they were not allowed to testify in claims based on other aspects of negligence.

The Court of Special Appeals concluded that the trial judge here had erred in barring the pharmacist’s testimony. The court held that the pharmacist should have been allowed to testify about “the material risks associated with a regimen of Amifostine therapy in connection with radiation therapy, particularly for this patient, including that the use of this drug under these circumstances was not previously approved by the FDA.” However, it would be impermissible for the pharmacist to testify that Dr. Shannon was negligent for having prescribed Amifostine for Mr. Fusco. The case was reversed and remanded.

Dr. Shannon and his practice group have appealed the Court of Special Appeals decision to the Maryland Court of Appeals, which is the highest court in Maryland.

On April 24, 2014, the Court of Appeals reversed the Court of Special Appeals and affirmed the trial court. It held that the adequacy of the informed consent had to be measured by the disclosure of the materiality of the risks associated with the administration of Amifostine. This depended not only on the existence of potential side effects but also with the likelihood that those side effects might occur and their severity if they did occur.

In this case, proffered testimony of the pharmacist would have addressed the existence of the side effects but not the likelihood of their occurrence or their severity. Thus, the pharmacist’s testimony would not have shown that Dr. Shannon failed to advise Mr. Fusco about the material risks associated with the administration of Amifostine. Further, the Supreme Court held, it was immaterial whether the FDA had approved the Amistofine for the purposes of Dr. Shannon’s treatment of Mr. Fusco. Accordingly, it was within the discretion of the trial judge to bar the pharmacist’s testimony.

Litigation Center involvement

The Litigation Center, along with Med Chi, the Maryland State Medical Society, and Medical Mutual Liability Insurance Society of Maryland filed an amicus brief in support of the defendants.

Maryland Court of Appeals brief

Glenn v. Plante, 676 N.W.2d 413 (Wis. 2004)

Outcome:     Very favorable

Issue

The issue in this case was whether a court could require a physician to testify as an expert witness, against the physician's wishes.

AMA interest

Although the AMA encourages its members to serve as impartial expert witnesses, it 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.  His medical services for her included 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, 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.  Subsequently, the Glenns asked the court for an amendment to the scheduling order to give them additional time to locate an expert witness willing to testify. Simultaneously, Dr. Plante moved to dismiss, because of the Glenns' failure to name an expert witness within the court imposed deadline.

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 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, which then reversed the Court of Appeals and the trial court.  It held that the Glenns had not shown compelling circumstances to force Dr. Koh to appear as an involuntary expert witness. The case was remanded 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.  The brief argued 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.

Wisconsin Supreme Court brief

Nicholas v. Mynster, 64 A.3d 536 (N.J. 2013)

Also under Professional liability, Tort reform

Outcome:    Very favorable

Issue

The issue in this case was whether a New Jersey statute, the Patients First Act, should bar a physician from testifying as an expert witness on the standard of care in a medical malpractice case against a physician with a different medical specialty than the expert’s specialty.

AMA interest

The AMA believes that expert witnesses in medical liability suits should actively practice or have board certification in the same field as the defendant.  The AMA also supports tort reform initiatives of state medical societies.

Case summary

Christopher Mynster, MD, who was board-certified in emergency medicine, treated Edward Nicholas for carbon monoxide poisoning at a hospital emergency room.  He had Mr. Nicholas placed on 100% face mask oxygen and recommended that he be admitted to the hospital.  He also prescribed Ativan to alleviate Mr. Nicholas’s anxiety and muscle cramps.  In addition, he asked Rehka Sehgal, MD, a board-certified family practitioner, to help assess Mr. Nicholas.

After discussing the case with Dr. Mynster and examining Mr. Nicholas’s medical records and history, Dr. Sehgal determined that Mr. Nicholas was suffering from carbon monoxide poisoning with anxiety and hyperventilation.  She ordered that he be admitted to the intensive care unit and be medicated with Ativan and Zofran.  Notwithstanding this care, Mr. Nicholas suffered a brain seizure.

Mr. Nicholas and his wife sued Drs. Mynster and Sehgal for medical malpractice.  They claimed that the defendants had failed to order appropriate tests, had failed to treat Mr. Nicholas promptly, and had failed to refer him to other facilities and/or specialists for necessary care.  But for their negligence, according to the plaintiffs, he would not have suffered the seizure.

The plaintiffs proffered Lindell Weaver, MD, a Utah physician, as an expert on the relevant standard of care.  Dr. Weaver is an expert in hyperbaric medicine and is board-certified in internal medicine, critical care medicine, and pulmonary diseases.  However, he does not practice and is not board certified in emergency or family practice medicine.  In his deposition, Dr. Weaver testified that he had not worked in an emergency room for the past 20 years and did not know how the average family practitioner would have treated Mr. Nicholas.

The defendants moved to prohibit Dr. Weaver’s testimony, asserting that, because he is not board-certified in the defendants’ specialties, the Patients First Act barred his testimony on the standard of care.

The Superior Court trial judge denied the motion, finding that Dr. Weaver’s lack of board certification in emergency or family practice medicine might be a factor in determining his credibility but should not determine his competence.  Likewise, the court held, his lack of knowledge of what a family physician would do in the plaintiff’s case should not bar him absolutely from testifying against Dr. Sehgal but should only affect his credibility.

The defendants sought an interlocutory appeal to the Appellate Division, but it summarily denied that request.  The defendants then appealed to the New Jersey Supreme Court, which reversed the trial court decision.

The case was remanded to the trial court, with a direction that Dr. Weaver be barred from testifying as an expert.

Litigation Center involvement

The Litigation Center, along with the Medical Society of New Jersey filed an amicus brief in the New Jersey Supreme Court in support of the defendant physicians.  The brief argued that the Patients First Act requires that Dr. Weaver be barred from testifying as to the standard of care.  His lack of board-certification in the defendants’ specialties should affect his competence to testify and not merely his credibility.

Supreme Court of New Jersey brief

Ryan v. Renny, 999 A.2d 427(N.J. 2010)

Also under Affidavit of merit, Certificate of merit, and Professional liability

Outcome:    Very unfavorable

Issue

The issue in this case was whether the New Jersey medical malpractice expert testimony/affidavit of merit law should be narrowly construed to allow standard of care testimony only by a physician who is board certified or experienced in the specialty of the physician being sued except in extraordinary circumstances or whether the board certification/experience requirement can be waived without a full explanation.

AMA interest

The AMA believes that expert witnesses in medical liability cases should have comparable education, training, and experience or board certification in the same field as a defendant physician.

Case summary

Andrew Renny, MD, a board certified gastroenterologist, performed a colonoscopy on Abby Ryan. Allegedly, this was done negligently, and he perforated her bowel. She and her husband sued Dr. Renny for medical malpractice.

In New Jersey, a plaintiff in a medical malpractice suit must, within 60 days of the filing of the answer to the complaint, submit an affidavit of merit, which is to attest that the care provided by the defendant fell outside acceptable professional standards. The person who signs the affidavit must demonstrate expertise in the medical procedure at issue, as evidenced by board certification or by a specialized area of practice. If good cause is shown, the court can extend the 60 day deadline by an additional 60 days.  However, a court has discretion to waive these testimonial requirements, upon motion, if the moving party (a) demonstrates an inability to obtain an otherwise suitable expert after a good faith effort to find one and (b) secures another physician to sign the affidavit or provide the testimony, even though the substitute physician is not a specialist in the area of practice, so long as the substitute expert has “sufficient training, experience and knowledge” to testify.

In their suit against Dr. Renny, the Ryans submitted an affidavit signed by a general surgeon, who was not board certified in gastroenterology and had not performed a colonoscopy in several years. The general surgeon’s affidavit asserted that he was knowledgeable in issues involving colonoscopies and perforated bowels.

Dr. Renny moved to dismiss the complaint, because the affidavit failed the specialization requirements of the New Jersey statutes. In response, the Ryans’ attorney advised the court that he had contacted three gastroenterologists, all of whom “declined to provide an opinion relating to the actions of the defendant Andrew Renny, M.D.”  Following these efforts, the attorney secured the general surgeon’s affidavit. After hearing oral argument, the trial judge waived the specialty requirement and denied the motion to dismiss the complaint. Dr. Renny appealed the denial of the motion to dismiss to the Appellate Division of the New Jersey Superior Court.

The Appellate Division found that the affidavit of merit law had been passed to weed out unmeritorious medical malpractice lawsuits at an early stage of the proceedings.  For that reason, the law required an affiant to possess the higher qualifications of a specialist or sub-specialist, rather than those of a generalist. That purpose could be defeated if a plaintiff could obtain a waiver merely by showing that specialists in the area were unwilling to sign an affidavit of merit, without an explanation for their unwillingness. Examples of possibly satisfactory explanations might be a conflict of interest, a practice of refusing to become involved in litigation as an expert witness, or a refusal to travel outside a limited geographic area. With such an explanation, the trial court might then consider whether the affidavit or testimony of the generalist would suffice.

Here, no explanation had been given for the gastroenterologists’ refusal to sign the Ryans’ affidavit of merit. Accordingly, the Appellate Division held that the trial judge should have granted the motion to dismiss.  The Appellate Division reversed the order granting the waiver and directed that the complaint be dismissed.

The Ryans appealed to the New Jersey Supreme Court.  The Supreme Court, in a split decision, reversed.  It found that the Ryans' attorney had made a good faith effort to find a gastroenterologist willing to testify, and that was sufficient to satisfy the first part of the waiver requirement, regardless of the reasons why the gastroenterologists refused to testify.  Further, the general surgeon was sufficiently familiar with colonoscopies to satisfy the second part of the waiver requirement.  The case was remanded to the trial court for further proceedings.

Litigation Center involvement

The Litigation Center and the Medical Society of New Jersey filed an amicus brief in the New Jersey Supreme Court to support Dr. Renny and urge a narrow interpretation of the statutory waiver provision.

Supreme Court of New Jersey brief

Seisinger v. Siebel, 203 P.3d 483 (Ariz. 2009)

Outcome:    Very favorable

Issue

The issue in this case was whether the Arizona statute governing  expert witness qualifications in medical malpractice actions violated Arizona's constitutional separation of powers requirement.

AMA interest

The AMA considers medical liability reform its highest legislative priority.

Case summary

Laura Seisinger sued Scott Siebel, MD, for alleged medical malpractice when he administered a spinal epidural during labor. Ms. Seisinger identified an expert witness on the standard of care.  However, her designated expert had not engaged in clinical practice for over eight years.

A.R.S. § 12-2604(A) provides that, in a medical malpractice suit, an expert witness can testify on the appropriate standard of care only if the witness meets defined criteria of expertise and experience. The trial court found that Ms. Seisinger's expert did not meet these standards, that the statute  barred his testimony, and that the statute is constitutional.  Ms. Seisinger appealed.  The Arizona Court of Appeals reversed and held the statute unconstitutional.

Dr. Siebel then appealed to the Arizona Supreme Court. The Arizona Supreme Court reversed the decision of the Court of Appeals and held the statute constitutional. It found that the statute was a change in the substantive law and thus did not conflict with the judiciary’s prerogative of establishing procedural rules for the courts.

Litigation Center involvement

The Litigation Center and the Arizona Medical Association, along with numerous other health care organizations, filed an amicus curiae brief with the Arizona Supreme Court.

Arizona Supreme Court brief

Sullivan v. DeJong (Ill. App. Ct. 2003)

Also under Abusive litigation against physicians, Affidavit of merit, Certificate of meritExpert witnesses, Professional liability, and Tort reform

Outcome:    Somewhat unfavorable

Issue

The issue in this case was whether a physician who has been sued for medical malpractice pursuant to the certification of another physician can learn the identity of the physician who certified that he committed the alleged malpractice. 

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive malpractice litigation.

Case summary

William Sullivan, D.O. was an emergency room physician.  When Mary Weiland was seriously injured in an automobile accident, she was brought to the hospital emergency room and was immediately attended by the hospital’s trauma team, which did not include Dr. Sullivan.  Due to various medical complications, the trauma team was unable to insert an intravenous needle in Mrs. Weiland.  Because Dr. Sullivan was experienced in obtaining the necessary central venous access, the trauma team asked him to insert an emergency central venous catheter in her.  He did this successfully.  That was the only procedure he had been asked to perform for Mrs. Weiland.  Subsequently, Mrs. Weiland died.

Mrs. Weiland’s estate then brought a wrongful death action against ten osteopathic physicians (including Dr. Sullivan), one allopathic physician (i.e., an M.D.), two nurses, and the hospital.  The estate alleged that Dr. Sullivan and the other physicians had failed to (i) diagnose that she had been suffering from internal bleeding, (ii) interpret her CT scan properly, (iii) appreciate the signs and symptoms of shock, and (iv) perform necessary surgery and other treatments relating to her bleeding.

Pursuant to Illinois law, 735 ILCS § 5/2-622, Mrs. Weiland’s estate affixed a statement to the complaint, allegedly signed by an experienced trauma surgeon, which asserted that “a reasonable and meritorious cause exists for filing a suit against [the physicians and the hospital] for failing to appreciate the signs and symptoms of hypovolemic shock, and of internal bleeding, and for failing to surgically repair the bleeding.”  Also pursuant to Illinois law, the trauma surgeon’s name was not shown on the report.

The trial court dismissed most of the defendant physicians on motion.  The plaintiff’s law firm offered to dismiss Dr. Sullivan voluntarily, without prejudice (i.e., leaving open the possibility of plaintiff filing another suit against him), but Dr. Sullivan refused.  He said that he was going to be dismissed with prejudice (i.e., foreclosing the possibility of a similar future lawsuit) or not at all.

Dr. Sullivan then filed an affidavit and a motion to be dismissed from the Weiland case.  He stated that, although he had been the hospital emergency physician on duty, Mrs. Weiland was not primarily his patient.  Rather, she was considered a “trauma code” patient.  Trauma code patients are registered under the trauma service attending physician and are exclusively managed by the trauma team. Upon presentation of the affidavit, the trial court dismissed Dr. Sullivan with prejudice.

Dr. Sullivan, acting as his own attorney, then sued Mrs. Weiland’s lawyer for malicious prosecution.  He also sued “Dr. Doe,” the unnamed trauma surgeon.  His complaint charged that, had Dr. Doe properly investigated the medical records and the circumstances surrounding Mrs. Weiland’s emergency department care, he would have seen that the allegations raised against Dr. Sullivan and at least four of the other physicians were made without reasonable cause.  He also alleged that Dr. Doe’s report had been made in reckless disregard for the truth, and “in bad faith.”  According to Dr. Sullivan, an experienced trauma surgeon should have recognized that he was not a part of the trauma team, and that his role in Mrs. Weiland’s care was, under accepted medical practice, limited to the insertion of the intravenous catheter.  Further, Dr. Sullivan alleged that had he attempted to make the diagnoses and perform the surgery that Dr. Doe claims he should have provided, it would have interfered with Ms. Weiland’s care.

After he filed his complaint, Dr. Sullivan filed a verified petition for discovery, as part of the same lawsuit.  In this petition, he indicated that he had asked Mrs. Weiland’s law firm to disclose Dr. Doe’s identity but the law firm had refused to do so.  Mrs. Weiland’s law firm moved to dismiss the complaint and the petition for discovery, and the trial court granted the motion.

Dr. Sullivan appealed.  His appellate brief concentrated on his right to learn Dr. Doe’s identity, so that he could ascertain whether Dr. Doe was, in fact, an experienced trauma surgeon and whether Dr. Doe had some basis for his charge that Dr. Sullivan had failed to care properly for Mrs. Weiland.

Mrs. Weiland's former attorney filed an answer brief, and the Illinois Trial Lawyers Association filed an amicus curiae brief opposing Dr. Sullivan.  Dr. Sullivan then filed a reply brief.

The Illinois Appellate Court, without hearing oral argument, affirmed the trial court decision against Dr. Sullivan.  In an extensive and carefully worded decision, it held that his legal arguments were essentially correct, but he had not been sufficiently specific in his factual statements to the lower court.  Thus, Dr. Sullivan was correct in principle, but he lost on a procedural technicality.  If the opinion were to be published, it would essentially serve as a blueprint for how Illinois physicians can sue an expert witness who signed a certificate of merit in bad faith.  A physician then would be able to use more effectively Dr. Sullivan’s general legal theories in the setting forth of facts.

However, the Illinois Appellate Court issued its order in an unpublished format, so the decision is neither known to the legal or medical community nor citable as precedent in other cases.  Dr. Sullivan filed a motion for reconsideration, urging the Appellate Court to publish its order, but that motion was denied.

Litigation Center involvement

The Litigation Center engaged an experienced lawyer to represent Dr. Sullivan in his appeal.

Yancey v. Weis, Hardten and American Academy of Ophthalmology (Hennepin Cty., Minn.)

Outcome:   Very favorable

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.

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)

Outcome:  Very Unfavorable

Issue

The issue in this case was whether an appropriate legal standard was applied in determining the admissibility of expert witness testimony in a medical malpractice case.

AMA interest

The AMA believes that the testimony of medical expert witnesses should reflect current scientific thought and standards of care that have gained acceptance among peers in the relevant field.

Case summary

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 Appellate Division denied the motion for reconsideration or certification, without discussion.

Litigation Center involvement

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 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.