North Carolina judge reverses doctor discipline license case

A neurosurgeon said his victory over a medical board means doctors should not worry about giving expert witness testimony.

By Damon Adams, amednews staff. June 2/9, 2003.

A judge has ruled that the North Carolina Medical Board cannot strip Gary Lustgarten, MD, of his state medical license over expert witness testimony he gave in a medical malpractice case.

Wake County (N.C.) Superior Court Judge Donald W. Stephens reversed most of the board's grounds for disciplining Dr. Lustgarten, a neurosurgeon. He agreed with one of the board's findings and sent that issue back to the board for a hearing on possible discipline for the doctor.

See related content
Region: South

But trial attorney groups said the ruling should give peace of mind nationwide to doctors who fear that expert testimony they provide could be subject to disciplinary action. They said boards might be more cautious about trying to discipline a doctor over expert testimony.

"Physicians should worry less about the testimony they give that is truthful or that is their opinion," said Stella Boswell, legal affairs counsel for the North Carolina Academy of Trial Lawyers.

Dr. Lustgarten agreed, saying he felt vindicated. "Both plaintiffs and the defense will continue to have access to experts without fear of having censorship brought upon them by the board of North Carolina," said Dr. Lustgarten, who practices in North Miami Beach, Fla.

The judge affirmed one of the board's findings, saying Dr. Lustgarten's testimony that a doctor in the case had falsified medical records was not protected opinion. By judge's order, the board will now conduct a disciplinary hearing on that aspect of Dr. Lustgarten's testimony.

A September hearing will be scheduled. If he is disciplined in the hearing, Dr. Lustgarten would appeal that decision, his attorney said.

The medical board has not decided if it will appeal the other actions reversed by the judge.

"[Board members] certainly believe they did the right thing," in disciplining Dr. Lustgarten, said board attorney Mary Wells.

In 1998, Dr. Lustgarten gave testimony as a medical expert in a malpractice suit brought against two doctors in North Carolina who cared for a young man with a brain condition who died. The case was settled, but one of the doctors filed a complaint against Dr. Lustgarten.

One ruling stands

The medical board found that Dr. Lustgarten had engaged in unprofessional conduct by misstating facts and the appropriate standard of care in North Carolina. In July 2002, the board revoked his license, which Dr. Lustgarten got years earlier because he thought he might practice in the state. He had not renewed his license, and it has been inactive since 1998. In North Carolina, it's up to the judge's discretion whether to let a physician testify with an inactive license.

The neurosurgeon said he did nothing wrong and appealed the board's decision.

In his ruling in April, Stephens said the board "lacked sufficient statutory grounds to discipline" Dr. Lustgarten concerning his testimony on the standard of care and information exchange between the two doctors named in the malpractice suit.

The judge said state law used by the board "is unconstitutionally vague in that it does not place a reasonably intelligent member of the profession on notice that he or she could be disciplined for such conduct."

Carlton Carl, spokesman for the Assn. of Trial Lawyers of America, said the ruling should give comfort to doctors who appear as expert witnesses. "To try to intimidate somebody into not offering truthful testimony is outrageous," Carl said. "Given the outcome, they certainly shouldn't be less reluctant" to testify.