Minnesota physician can sue doctors critical of courtroom testimony

By Amy Lynn Sorrel

A recent Minnesota trial court ruling raises questions about whether medical specialty societies should serve as sentinels over expert witnesses in the courtroom.

A Hennepin County District Court judge tossed out claims that the American Academy of Ophthalmology defamed Charles Yancey, MD, when its ethics committee examined his statements as a plaintiff expert in a medical liability case. The investigation followed a complaint made by two academy members. Ophthalmologists Jeffrey R. Weis, MD, and David R. Hardten, MD, were defendants in the lawsuit and accused Dr. Yancey of giving misleading testimony.

The court said Dr. Yancey, as an AAO member, agreed to abide by the academy’s ethical rules and regulations, which include a peer review system for questionable medical testimony. The judge dismissed claims that the AAO and Drs. Weis and Hardten had conspired to intimidate Dr. Yancey from testifying in future cases.

But the court allowed Dr. Yancey to sue the two doctors individually for allegedly besmirching his reputation when they filed their grievance with the AAO. The trial is expected to begin in August.

In its decision, the court also raised some public policy concerns about the issue, which has divided physicians.

Judge Tony N. Leung recognized the benefits “in favor of effective peer review in the medical professions for the purpose of reducing instances of medical malpractice,” noting federal protections available under the Health Care Quality Improvement Act. “At the same time … it is debatable whether the public would be benefited by having professional peer review used to curtail or chill what could be appropriate testimony by experts in medical malpractice cases,” Leung wrote in the Feb. 25 opinion.

Other courts have tackled the matter.

A Florida appeals court in 2006 gave a California doctor the right to sue the Florida Medical Assn. for defamation after three members reported his testimony against them as a plaintiff expert. The case is headed to trial, though no date has been set.

An August 2007 decision in the 10th U.S. Circuit Court of Appeals went the other way. Judges concluded that a complaint lodged by a Kansas doctor with the American College of Obstetricians and Gynecologists, challenging a colleague’s testimony for the plaintiff, was not defamatory. The court dismissed the medical expert’s lawsuit against the doctor.

Doctors debate societies’ role

American Medical Association policy considers giving expert witness testimony a form of medical practice and states that it should be peer reviewed.

AAO General Counsel Katherine Salazar-Poss said decisions like the one in Minnesota affirm medical specialty societies’ ability to enforce such ethical rules — to which members consent — and make sure doctors follow the same standards in front of a jury, as well as patients.

“There are a number of ways physicians are called upon to communicate their medical knowledge — whether in the courtroom, or to a patient, or in a journal article — and there has to be an ethical way of doing it,” Salazar-Poss said.

The academy says it carefully follows its policies and procedures for reviewing complaints, which are treated confidentially and impartially.

Although courts are the first line of defense, Salazar-Poss said medical societies, with their expertise, are another tool to help weed out unsound medical judgment and keep the judicial system fair.

But Dr. Yancey’s attorney, Michael A. Zimmer, said such programs aim to keep doctors from testifying for plaintiffs and hinder legitimate medical liability cases.

Dr. Yancey is considering appealing the decision dismissing his claims against the AAO. He alleged in court documents that he was not treated fairly when the organization notified him of a potential ethics violation the day before he was due to testify in a damages hearing. It was Dr. Yancey’s first time as an expert witness.

Still, the court ruling offers physicians some recourse against baseless complaints that serve to hurt doctors’ credibility, Zimmer said.

“Allegations that someone knowingly provided false testimony or intended to mislead a jury are pretty strong statements to be made of an honorable expert taking the stand and expressing his opinion in good faith,” he said.

As expert witnesses, doctors are doing just that — giving their opinion — not practicing medicine, Zimmer said. “Do professional organizations get to decide whose opinion is correct?” he asked.

Rather, Zimmer argued that the courts are better equipped with a number of safeguards to keep out junk science, whether through qualification criteria, tough cross-examination or detailed briefs submitted to judges before experts take the stand.

Drs. Weis and Hardten deny any defamatory actions or malicious intent, but their attorney declined to comment further due to the pending litigation. In court papers, the doctors said they filed their complaint with the AAO to deter future occurrences of inaccurate courtroom testimony.

The AAO said its investigation of Dr. Yancey’s testimony is ongoing, but it offered no details due to the confidential nature of the proceedings. The court noted that 12 of the 14 allegations made against Dr. Yancey had been dropped by the AAO’s ethics panel.

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