Should Doctors Start to Police Their Own?  Medical Society Suspensions and Discipline

BACKGROUND OF DISCIPLINE AND SUSPENSION

The North Carolina Medical Board, which functions like the Texas Board of Medical Examiners, voted in November to suspend a neurosurgeon’s license due to his testimony in a medical malpractice case.

This suspension was the first of its kind in North Carolina and probably for the nation. It may start a trend in Texas and other states for medical societies and medical boards disciplining doctors who testify in medical malpractice cases.

The doctor in question, Dr. Gary Lustgarten, is Florida neurosurgeon who testified for a plaintiff in a medical malpractice case in North Carolina. The North Carolina Board found that Dr. Lustgarten engaged in unprofessional conduct by misstating the facts involving the defendant doctor and misapplying the appropriate standard of care. Dr. Lustgarten disputed these findings.

It is interesting to note that Dr. Lustgarten had previously been disci­plined. The American Academy of Neurological Surgeons (AANS) found that he had engaged in unprofessional conduct.

Previous to the North Carolina action in 1995, AANS disciplined a Michigan neurosurgeon, Dr. Donald Austin for inappropriate expert witness testimony. That case, Donald C. Austin v. American Association of Neurological Surgeons, was decided by the United States Court of Appeals for the Seventh Circuit, which sits in Chicago, Illinois.

LAWSUIT AGAINST THE AANS

Dr. Austin flied a lawsuit against the AANS for suspending him for six months. He claimed that his testifying as a plaintiff’s medical expert caused his suspension. He further espoused that the AANS acted in bad faith since it only disciplined plaintiff’s experts and not those who testify for defendant doctors. His final complaint was that the AANS should not discipline a member unless it could show the testimony was intention­ally false.

The lawsuit in question involved a woman whose recurrent laryngeal nerve was damaged when a Dr. Ditmore per­formed an anterior cervical fusion that resulted in a paralyzed vocal cord; diffi­culty in swallowing that necessitated a tracheotomy.

At trial, with no real basis or medical record for support, Dr. Austin was allowed to testify that an injury could result only if the Dr. Ditmore seas care­less in the operation. He further testified that Ditmore might have rushed the oper­ation, although this was not documented.

The jury heard this testimony despite Dr. Austin’s lack of experience, having performed only 25 to 30 anterior cervical fusions in more than 30 years of practice. Meanwhile, the defendant, Dr. Ditmore, had performed over 700 anterior cervical fusions, with this being the only case resulting in any permanent damage.

HEARING BEFORE THE AANS

Dr. Ditmore filed a complaint with mite AANS and a hearing was held to determine if Dr. Austin should retain his priv­ileges as a member of the AANS. A full and complete hearing with counsel was conducted into the allegations concern­ing Dr. Austin’s testimony.

The major points that were developed at lie hearing included that an article (Ralph B. Cloward, Complications of Anterior Cervical Dis Operation and Their Treatment,” 69 Surgery 175, 182) that Dr. Austin claimed support­ed his position did not.

Dr. Austin testified that “the majority of neurosurgeons” supported his position but at the AANS hearing, he admitted that he had never discussed his position with any other doctors. A search of the medical literature on the complications with anterior cervical fusion shows that permanent damage is rare but does occur. These statements and others were found to have violated the AANS ethical code.

LESSONS FROM THE AANS MATTER

In reviewing the Lustgarten and Austin matters, there may be lessons other doctors can take to heart when they are sued and brought into a lawsuit. First, if a member of a medical associa­tion is sued and another member is called upon to testify against the member in a medical malpractice suit, and the defen­dant believes the testimony is irresponsi­ble, a complaint should be filed. The medical association should hold a full and complete hearing concerning the complaint.

If the medical association has an ethi­cal code or sets certain standards for it’s members who testify in court, the ques­tionable testimony may have violated these standards. Dr. Austin made some misrepresentations in his testimony and did not provide the court “with accurate and documentable opinions.”

Second, there does not have to be a showing of knowingly false testimony for the organization or association to discipline a member. The standard for discipline is whether of not the member gave irresponsible testimony.

Finally, the United States Court for the Seventh Circuit held the AANS’s actions in disciplining a questionable, or “poor physician, serves an important public policy function. Hospitals arc encouraged tinder the Health Care Quality Improvement Act to conduct professional review of staff members and report unprofessional conduct. The Court encouraged medical associations to do the same if the actions are taken in good faith and not for instance in fur­therance of a political agenda.

Although the author is unaware of tiny action by the Texas Board of Medical Examiners or any medical asso­ciation in Texas that has done what the North Carolina Board did in revoking Dr. Lustgarten’s license or the AANS sus1tetmtling Dr. Austin’s membership privileges, these actions may be neces­sary in time right case. Others have pro­posed holding academic institutions liable for the testimony of their faculty members; A word of caution is neces­sary since actions in bad faith may make an organization liable to punitive damages and allegations of witness intimidation.