Doctors and Lawyers: Witness intimidation?

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“No doubt most members of the AANS are hostile to malpractice litigation, and this may impart a subtle bias to the Association’s evaluation of members’ complaints,” Posner wrote.

The reason doctors oppose peer review hearings is because the penalties can be a “giant black flag that almost by operation of logic will result in them not being allowed staff privileges at a university hospital,” said Cogan & McNabola attorney Michael Cogan, who represents plaintiffs in medical malpractice and personal-injury cases.

“If they’re not a member of ACOG, the question is, ‘Why?’ In Chicago, we’ve found that the number of credible experts willing to review cases has declined substantially in the last several years,” Cogan said.

Deprived of the best doctors

Before a medical malpractice suit can be filed in Illinois, plaintiff’s attorneys need a physician to sign a certificate supporting an allegation of malpractice.

“We have J.D.s, not M.D.s,” Cogan said. “And we want to be told by somebody who we can truly believe in that there is malpractice, and we don’t [want to] file a case that turns out not to be meritorious as we have been led to believe because we’ve been deprived of some of the best of the best doctors.”

Like other plaintiff’s lawyers, Cogan believes that the medical organizations are intimidating witnesses. But the policies on expert testimony don’t appear to be illegal.

“We’ve looked hard and can’t seem to find a statute that’s been violated,” Cogan said. “ACOG is a private organization, and that makes it more difficult to stop this type of practice. It’s sort of like a country club. They’re private organizations, and they can pretty much do what they want.”

Unlike the courtrooms where physicians testify, medical association hearings have no transparency or due process protection, some lawyers say.

In a 2006 incident involving the American College of Surgeons, Northbrook attorney Miles J. Zaremski represented a bariatric surgeon who was accused of violating the association’s policy on expert testimony.

Problem was, Zaremski couldn’t get a copy of the complaint filed against his client, and he wasn’t given the names of the accuser or investigators.

“If we were in China or Soviet Russia, maybe I would have expected this. Not in the United States of America,” said Zaremski, who represented the doctor even though he typically represents defendants in health-care matters and malpractice cases.

The complaint was later dropped, Zaremski said.

Asked about its peer review process, the American College of Surgeons released a state­ment saying that its review panel evaluates complaints “professionally” and “with the appropriate due process.” The statement also said that the organization doesn’t restrict, prohibit, or curtail accurate expert testimony by its members.

Vail, of the Center for Constitutional Litigation, said the doctors accused of shoddy ­testimony are being judged “by self-interested parties because all of this is about the asserted medical malpractice crisis and keeping insurance premiums down and keeping claims down.”

Indeed, money is involved.

The medical organizations fight malpractice suits because large jury verdicts can affect malpractice insurance costs. Plaintiff’s attorneys want the best experts who they can find to increase their chances of winning the case. And physicians who serve as experts can get paid $300 to $2,000 an hour.

In 2005, the Illinois General Assembly supported caps on non-economic damages such as pain and suffering. Doctors and insurers had convinced lawmakers that skyrocketing malpractice insurance premiums were forcing doctors to flee the state or to leave certain medical fields.

As a result, non-economic damages for plaintiffs were capped at $500,000 against doctors and $1 million against hospitals. Just before the caps were passed, ISMIE Mutual Insurance Co., the largest malpractice insurer in Illinois, faced about 3,400 new lawsuits in 2004. That number fell to about 2,700 malpractice suits in two years.

In that same time period, its annual profits jumped from $11.7 million to $50.2 million, according to financial statements filed with the Illinois Department of Financial and Professional Regulation.

Plaintiff’s lawyers are fighting the damage caps in court, and both sides expect that a final ruling will come from the Illinois Supreme Court. Last November, a Cook County judge ruled that the caps violate victims’ rights.

Those rights are the main issue at hand, plaintiff’s lawyers say.

“We all look at this as a business, but when you think about this, this is about people’s lives,” Phillips said.

“They need their day in court. They can’t pay their mortgage, kids’ education, and other finances in the family. They need a trial and, all of a sudden, the witness pulls out and you ask the judge for a continuance for another six to 12 months,” Phillips said. “For the lawyers, this is an inconvenience. For clients, it can
be life or death because they can run out of money.”

That is the main reason why this issue ­matters and is worth discussing, said Dr. Fuller­ton, whose defamation suit is pending against the Florida Medical Association.

“When a patient is hurt or harmed, and there’s real malpractice, it takes an expert to stand up, on either side of the aisle, really, and speak out,” he said.

“And it’s my belief — and my experience, now — that when it’s made to look difficult for the expert on the plaintiff side to speak out … it can influence the case,” said Fullerton, who serves on the clinical faculties of Yale University School of Medicine, Stanford University School of Medicine, and the University of California San Francisco School of Medicine.

But that’s not to say that every pressure ulcer equates to malpractice.

“I’ve testified for defense and plaintiff cases and, as a professional, you have a responsibility to ferret out cases that are thumbs down,” said Fullerton, who specializes in internal medicine, geriatrics, and hospice. “I’ve probably turned down 100 cases over the last six, seven years.”

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