Law & Medicine

Expert Witnesses Under Fire

Peer review, which plays an important role in reviewing medical care in hospital settings, sometimes is abused and warped to a degree never envisioned by legislators.

Two examples now moving through state legal systems warrant attention. They are Joseph Kamelgard, M.D. v. the American College of Surgeons (Circuit Court of Cook County, Ill.), and Charles Yancey, M.D. v. American Academy of Ophthalmology, et al. (4th Judicial District, Hennepin County, Minn.).

In the Kamelgard case, Dr. Kamelgard, a well-regarded bariatric surgeon from New Jersey, testified for the first time as a medical expert in a malpractice lawsuit in federal court in Brooklyn, N.Y. The plaintiff, a New York resident, was cared for at a Staten Island hospital. The defendant was a physician who, according to court records, had been named previously in professional liability cases. The jury decided in favor of the defendant physician.

The defendant physician never challenged Dr. Kamelgard's testimony. But the defendant later filed a complaint with the American College of Surgeons (ACS), accusing Dr. Kamelgard of allegedly testifying falsely regarding relevant standards of care. The ACS decided to charge Dr. Kamelgard with violating its rules, but shortly before a scheduled hearing, lawyers intervened on Dr. Kamelgard's behalf. The ACS later dropped the case; no explanation was ever given.

Despite Dr. Kamelgard's requests, the ACS refused to provide him with a copy of the complaint against him, the identity of his accuser, or even the names of the three members of the ACS deemed qualified as bariatric surgeons to review the complaint for the college.

Dr. Kamelgard filed a petition seeking the identities of these three members. The ACS asserted that what was being sought was protected by the state's Medical Studies Act (MSA), its peer review statute.

According to court filings, the ACS admitted that no practice of medicine occurred in Illinois, that testifying equates to the practice of medicine, and that by testifying there Dr. Kamelgard practiced medicine in New York (though New York's statute defining medical practice does not include testifying). But even though he was not licensed in Illinois and had no connection to the state except belonging to the ACS headquartered there, the ACS wrote that any physician who becomes a member agrees to be bound by Illinois law. The ACS, which has over 74,000 members worldwide, suggests by this case that Illinois law governs its conduct.

In the Minnesota case, Dr. Yancey sued a Dr. Weis, and his expert, a Dr. Hardten, for defamation as a result of their filing an ethics complaint against him with the American Academy of Ophthalmology (AAO). At the time the ethics charge was filed, Dr. Yancey was the expert medical witness for the plaintiff in a malpractice case in which Dr. Weis was a defendant. (As with Dr. Kamelgard, this was the first time that Dr. Yancey had ever testified as a medical expert.) Dr. Yancey also asserted that the AAO violated its own rules when it handled the complaint against him, including not keeping the matter confidential.

After a jury returned a verdict for $3 million in favor of the plaintiff, the case was going to be retried on damages with Dr. Yancey again offering testimony. But a day before this was to occur, the AAO served on him the ethics charge Dr. Weis and Dr. Hardten had filed.

According to his lawyer, Dr. Yancey claimed the ethics charge was an attempt to force him to alter his testimony, and to chill his ability to testify in other, subsequent cases that may have come his way. The defendants moved to dismiss Dr. Yancey's complaint and, in the alternative, for the summary judgment.

In the Kamelgard case, which is pending in Illinois but now on appeal, it remains to be seen whether an Illinois court will opine on how the ACS believes the Illinois statute should be used. The Yancey case is also still pending.

State peer review statutes were enacted to maintain and improve health care by keeping the products of a peer review committee privileged from discovery. (The exception to this is when certain cases are litigated in federal court—see my column “A Matter of Privilege,” Jan. 15, 2008, p. 34.)

The Yancey and Kamelgard cases highlight attempts to redefine peer review statutes to include judging expert testimony within the practice of medicine. Such statutes were also not intended to apply solely because an organization is headquartered in a particular state without any health care rendered there, or to chill an expert from further testifying during the course of a legal proceeding.

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