Michigan neurosurgeon sues specialty society over suspension

A Michigan physician says the American Assn. of Neurological Surgeons punished him for testifying in a malpractice suit; the society says he gave improper testimony.

By Tanya Albert, amednews staff. Feb. 12, 2001.

A Detroit neurosurgeon is suing his specialty society, claiming it unfairly suspended him for testifying for a plaintiff -- and against a fellow association member -- in a malpractice lawsuit.

But the American Assn. of Neurological Surgeons says the six-month suspension had nothing to do with the fact that the doctor testified for the plaintiff. The suspension came after an AANS hearing showed that the doctor had provided "unprofessional testimony" at the trial because it did not have a "convincing basis in either literature or logic."

Over the past 15 years AANS has reviewed about 50 members for possible misconduct while giving expert witness testimony, according to an American Medical Association report. But it's rare that disciplinary action has been challenged in court. And both sides in this lawsuit say they want to keep the judicial process fair and honest.

Donald C. Austin, MD, said his professional organization is trying to punish him for testifying against a colleague and use him as an example to keep other doctors from testifying for plaintiffs and against doctors.

The threat of suspension from a professional organization "is a serious deterrent for doctors to testify against other doctors," said Dr. Austin's attorney Henry C. Krasnow, partner with Krasnow Sanberg Cornblath & Hobbs in Chicago.

The AASN said its policies are in place to make sure jurors hear credible testimony on popular as well as minority views. "The AANS encourages members to testify on both sides of the issue," said AANS General Counsel Russell M. Pelton, with Ross & Hardies in Chicago.

Several medical associations have adopted ethical policies on expert witnesses to keep untruthful testimony out of the courtroom.

In November 2000, the Florida Medical Assn. adopted a program under which a physician can file a complaint against another physician for false testimony. After hearings, an opinion can be forwarded to the Florida Board of Medicine for action. Also, the AMA has said it will not tolerate false testimony from doctors and that it will assist state, county and specialty medical societies to discipline physicians who testify untruthfully.

"The AMA believes that physician expert testimony constitutes the practice of medicine, and the practice of medicine should be subject to peer review," said AMA Trustee Donald J. Palmisano, MD. "We are not opposed to minority opinion. We don't want false testimony."

Dr. Austin believes his suspension was improper, and he sued the AANS in the U.S. District Court's Eastern Division for the Northern District of Illinois. He asked to be reinstated, to have the disciplinary action removed from the association's records and to get damages for the income he lost as a result of the suspension. Dr. Austin said he earned more than $200,000 annually testifying in the five years before the 1996 suspension. He said he earned half that after the suspension.

In October 2000, the court said it didn't have the power to interfere with the internal operations of a private association. But in January, Dr. Austin appealed the decision to the 7th Circuit U.S. Court of Appeals in Chicago.

"The association's expert witness rules were designed and adopted and are enforced to punish members who provide admissible testimony as plaintiff's experts against other doctors in medical malpractice cases," his appeal says. "That is what they say. That is how the association acts in enforcing them."

But the AANS said the suspension was proper and that it had provided due process. Dr. Austin received all the evidence before a scheduled hearing, Pelton said. Dr. Austin had an attorney and the right to cross-examine at the hearing. After the hearing's report was filed, he was able to give the board of directors a rebuttal and had a right to appeal the suspension to the general membership anonymously, and he did, Pelton said.