Doctors and Lawyers: Witness intimidation?

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Schifrin joined ACOG in 1974, and attorneys find his knowledge useful, given that hospital staff readings of fetal heart monitors can play a major role in malpractice cases that involve deaths or injuries in childbirth.

In 2004, ACOG censured Schifrin after he gave a deposition in a Utah case that a doctor failed to notice and properly handle an under­developed fetus. Schifrin later resigned from the group.

“They said I had violated their ethical guide­lines, but it’s not clear that they have any,” Schifrin said. “The reason for the censure is the notion that obstetricians can’t be responsible for bad outcomes. That’s what ACOG wants you to believe.

“I was disturbed by what I perceived to be the new mission of ACOG: to eliminate criticism.”

And that’s been the result, Schifrin said.

“It’s been the big chill. People don’t want to testify. The pressure is considerable not to testify for the plaintiff,” Schifrin said.

“They think it’s a special gift I have for convincing juries. The answer is I just tell them what I think is the truth. And now that’s a problem because if that’s the truth, then sometimes obstetricians are negligent. So it’s easier to believe that I do it for the money. It’s easier to believe that I’ll lie for anybody,” Schifrin said.

The consequences

Plaintiff’s attorneys say the peer reviews conducted by medical associations single out plaintiff’s experts and ignore any potential ­irresponsible testimony from defendants.

But the reason that plaintiff’s experts are singled out is “obvious and innocent,” according to an opinion written in 2001 by Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals.

In Donald C. Austin v. American Association of Neurological Surgeons, a neurosurgeon sought damages against the AANS for a six-month suspension he received regarding his testimony in a malpractice case. The doctor resigned from the association and didn’t want to be reinstated, but he wanted his suspension expunged.

The association was granted summary judgment in federal court, and Austin appealed.

In the opinion, Posner affirmed, writing that if a plaintiff’s expert gives testimony that a defendant doctor believes is irresponsible, then it “is natural for the defendant to complain” to the association.

But if a plaintiff’s expert believes that a ­defense expert gave irresponsible testimony, “he is much less likely to complain, because that expert (and fellow member of the Association) has not accused him of negligence or harmed him in his practice or forced him to stand trial or gotten him into trouble with his liability insurer.”

Posner also wrote that Austin failed to show that an “important economic interest” was at stake. Membership in the AANS is not necessary to practice neurosurgery, Posner wrote, and Austin continued to work as a neuro­surgeon and as an expert witness.

Austin contended that his income from testi­fying had fallen to 35 percent — or $77,000 — of what it was before the suspension, when it was $220,000 a year.

“This is merely as it were Dr. Austin’s moon­lighting income, income from a sideline,” ­Posner wrote. “That is not the kind of professional body blow that the cases have in mind when they speak of an ‘important economic interest’ jeopardized by the action of a voluntary association.”

Though Posner concluded that common sense suggests that money can influence expert testimony and that more policing of expert witnesses is needed, he wrote that professional associations “have their own axes to grind.”

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