Appellate court ruling allows discipline over expert testimony from a neurosurgeon

A court says it welcomes medical societies' help in weeding out improper expert witness testimony in malpractice cases.

By Tanya Albert, amednews staff. July 2, 2001.

Medical society members may want to take a closer look at their organizations' professional standards.

In a first-of-its-kind ruling, the 7th U.S. Circuit Court of Appeals in June said a professional society could discipline a member if his or her behavior in the courtroom wasn't up to snuff.

Case at a glance
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The court said the American Assn. of Neurological Surgeons was allowed to suspend a member after a hearing showed that he had given improper testimony as an expert witness at a medical malpractice trial.

"It's a way of affirming to the public that organized medicine is interested in policing its own ranks," said AANS attorney Russell M. Pelton.

"It sends a strong message not only to the public, but also to the physicians that there are standards you have to uphold," added Illinois State Medical Society President Ronald L. Ruecker, MD, a gastroenterologist from Decatur.

ISMS joined the AMA and American College of Surgeons in filing a brief in the case supporting a medical society's right to discipline members after a due process hearing. The groups said providing expert testimony constitutes the practice of medicine and that that practice needs to be subject to peer review.

The case, Donald C. Austin, MD, v. AANS, ended up before the court after the Detroit neurosurgeon sued his professional society, saying the group unfairly suspended him as punishment for testifying for a plaintiff and against a fellow association member.

Dr. Austin said he had lost income after the six-month suspension and asked that the AANS remove the disciplinary action from his record.

But the court disagreed and, in fact, applauded AANS' efforts.

The court said judges need help in screening expert witnesses. "There is a great deal of skepticism about expert evidence," it said. "It is well known that expert witnesses are often paid handsome fees, and common sense suggests that a financial stake can influence an expert's testimony."

Because of that, more policing of expert witnesses is needed, the court said. "Not that professional self-regulation is wholly trustworthy," the court wrote. "Professional associations have their own axes to grind. ... But even in cases such as this ... he has recourse to defamation law should the discipline falsely impugn his professional competence."

But Dr. Austin's attorney, Henry C. Krasnow, fears that this decision will make it harder for patients filing malpractice suits to find physicians willing to testify against other physicians.

"The court is putting far too much power in the hands of people without any assurance of how they will exercise that power," he said.

Over the past 15 years, AANS has reviewed about 50 members for possible expert witness testimony misconduct, an AMA report said. About 10 members have been suspended or expelled. It is among several medical associations with ethical policies on expert witnesses to try to keep untruthful testimony out of the courtroom.

The Florida Medical Assn. in November 2000 became the latest to take up the issue. It allows a doctor to file a complaint against another physician he or she believes gave false testimony. After the association holds hearings, it can send an opinion to the Florida Board of Medicine for action.

Dr. Ruecker said the AANS decision likely would cause other societies to look at their own standards more closely and perhaps be more willing to take action when appropriate. "Clearly, one of the true marks of a professional organization is that you protect and uphold your standards. It's a way to give the public confidence in a physician if they are a member of the organization."

Krasnow said Dr. Austin had not decided whether to appeal.

ADDITIONAL INFORMATION:

Case at a glance

Donald C. Austin, MD, v. American Assn. of Neurological Surgeons

Venue: 7th U.S. Circuit Court of Appeals.
At issue: Whether a professional society can discipline a physician for testimony that was accepted as expert witness testimony in court.
Potential impact: It reaffirms an association's right to police members' professional conduct.

Weblink

7th U.S. Circuit Court of Appeals decision, Donald C. Austin, MD, v. American Assn. of Neurological Surgeons (http://laws.lp.findlaw.com/7th/004028.html)