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Silence of the experts: professional medical associations are taking aim at doctors who testify for plaintiffs injured by negligent medical care. Will the law protect doctors who speak out?

Article Excerpt
As the public call for medical malpractice legislative "reform" intensifies, a stealthy, more expedient sideline attack--aimed at the elimination of medical whistleblowers--is under way? Perhaps sensitive to the view that retaliation against internal critics is politically incorrect, organized medicine is carrying this off with a twist that any political spin artist would envy.

Masked as enhanced peer review and touted as a deliverance from "junk science," an attack on vocal medical-malpractice experts has begun. Various medical specialty groups are putting the squeeze on forensic experts by bringing ethics charges against them for giving "improper" courtroom testimony?

The American Association of Neurological Surgeons (AANS) took the first strike a few years ago when it suspended two neurosurgeons' memberships for testimony they gave that criticized other neurosurgeons.

More recently, other medical specialty groups and the American Medical Association (AMA) have considered adopting expert-witness-control programs masked as "enhanced peer review." (3) For example, the American College of Obstetricians and Gynecologists (ACOG) recently released its "Expert Witness Affirmation" form, a document its members are asked to voluntarily sign before testifying in any legal proceeding. It requires witnesses to affirm, among other things, that they have the relevant expertise, will remain impartial, and will submit their testimony to peer review on request. ACOG encourages members named as malpractice defendants to alert their attorneys to the form aim its new expert-testimony requirements as a potentially useful aid to cross-examination.

The Florida Medical Association (FMA) recently created the Expert Witness Program, administered through its Council on Ethical and Judicial Affairs. A malpractice defendant need only charge a colleague with "improper expert testimony" to receive the benefits of an immediate investigation into the testimony. Although the FMA lacks authority to directly interfere with licensing, an expert facing such an impromptu inquiry during litigation is now forced to decide whether to fight the good fight and testify, or to simply withdraw as an expert. Some have chosen the latter, more expedient route. (4)

Others have lashed back. Targeted with an FMA ethics charge, John Fullerton, a San Francisco internist, recently sued the association and three complainant malpractice-defendant doctors for libel, witness intimidation, and racketeering. Fullerton claims an investigation related to the ethics charge has damaged the commercial value of his expert testimony. (5)

The Hillsborough County Medical Association in Florida has set up a similar expert witness review committee under its Board of Censors. This self-proclaimed "ultimate bastion in determining the true standard of care" in the county has vowed never to allow that standard "to be bastardized in the office, hospital, or courtroom." Although it has no disciplinary powers, it offers to forward letters of support for complainants to the Florida medical board and other state boards that have jurisdiction over out-of-state witnesses. (6)

More aggressive proponents of the movement are urging state medical boards to assume more active oversight of expert witness testimony by suspending or revoking the licenses of doctors who give "improper testimony." (7) This effort is based on the questionable assumption that a forensic medical expert is engaged in the practice of medicine when he or she testifies, placing the testimonial conduct under direct control of these regulatory bodies. (8)

This brewing storm is contributing to a poisoning of the national atmosphere in which open acts of retaliation against doctors who speak out against substandard medical care are now rampant. In Florida, for example, a plaintiff's mammography expert recently received an envelope containing a medical journal clipping endorsing a boycott of a "small but deadly group" of academic experts willing to appear as courtroom experts. One of the defendants later admitted to mailing the article, and the plaintiff's attorney sought sanctions for witness intimidation. (9)

In North Carolina, a malpractice defendant whose colleague was found liable for a patient's wrongful death stuffed the hospital...

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