Wednesday, June 28, 2006

Lustgarten case illustrates difficulty in obtaining experts for plaintiff in malpractice cases

Gary Lustgarten's case is one of the most prominent examples of the growing campaign by medical societies nationally to discipline doctors for their testimony in malpractice cases. Medical groups say the efforts are needed to stop doctors from providing fraudulent or unsupported testimony. But plaintiffs lawyers say it's a naked effort to eliminate malpractice suits by intimidating medical experts from testifying for plaintiffs.

Several South Florida lawyers who represent medical malpractice plaintiffs and who were not involved in the case said Dr. Lustgarten's vindication won't solve the difficult problem of finding reputable medical experts willing to testify for their plaintiff clients.

"[Given] the fact that Lustgarten was put through that ordeal unjustly, most [doctors] think [testifying] is too risky to engage in," said Robert Boyers, a plaintiffs attorney with Hannon & Boyers in Miami.

"Lustgarten being vindicated hasn't made others want to testify," agreed Manuel "Alex" Reboso, a plaintiffs attorney with Rossman Baumberger Reboso & Spier in Miami. Efforts by state and special medical societies to step up scrutiny and sanctions against doctors who testify for malpractice plaintiffs have had a "chilling effect," he said.

In the case, defendant Dr. Jaufmann made a note that the cerebral fluid was not under any increased pressure. Expert Lustgarten testified that in his medical opinion Jaufmann's notes were inaccurate.

The North Carolina Medical Board found that Lustgarten had "misrepresented the standards of care applicable in [the case], had wrongfully stated that Drs. Keranen and Jaufmann [the defendants] had failed to have a meaningful exchange of information, and had testified that Dr. Jauffman falsified a medical record with 'absolutely no direct evidence to support this extremely serious allegation.'" The board revoked Lustgarten's license to practice in North Carolina.

A superior court reversed the board on the first two charges. Lustgarten appealed to Wake County Superior Court. The court partly reversed and partly upheld the medical board's decision. It said Lustgarten could not be disciplined for his testimony about the applicable standard of care and the meaningful exchange of information between Keranen and Jaufmann. But the court said Lustgarten could be sanctioned for his "unprofessional conduct" in alleging Jaufmann had "falsified medical record."

The case was remanded to the medical board, which suspended Lustgarten's license for one year. The Wake County Superior Court upheld that decision. Lustgarten appealed.

This month the North Carolina Court of Appeals reversed the lower court. "We conclude that the superior court erroneously affirmed the board's determination, as the substantial record evidence does not permit an inference that Dr. Lustgarten made an entirely unfounded statement concerning Dr. Jauffman's notes," the appellate panel wrote.

It is difficult to find experts for plaintiffs.

Plaintiffs attorney Thomas Culmo, of Culmo & Dolan in Coral Gables, said he has had a number of cases where he couldn't get doctors to even review the file once they found out he represented the plaintiff. In one case, he said he spoke with about 30 medical experts, none of whom would testify against the prominent doctor his client was suing. Culmo eventually had to drop the case.

[from Rebecca Riddick, Daily Business Review]


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