Physicians get called upon all the time to act as medical experts by writing reports, examining patients, or testifying under oath in a deposition or at a trial. If you are considering working as a medical expert, be wary, particularly if you belong to a professional association that has requirements for rendering such activities.
Why be on your guard? Because if you disagree with the way your organization regulates what you do as an expert witness, it's hard to fight against it.
Legal challenges to organizations that issue sanctions against one of their members acting as an expert are overwhelmingly unsuccessful; courts do not like to intervene in such administrative squabbles, even when a sanction is involved, so long as the physician was provided notice and an opportunity to be heard. These are the hallmarks of due process.
One recent lawsuit involving a Texas physician against the granddaddy of all medical groups that regulate expert testimony by members -- the American Association of Neurological Surgeons (AANS), which started its medical expert program in 1983 -- continues to exemplify this trend. The doctor in question has won a battle over his testimony, but appears to have lost the war.
For purposes of disclosure, I should note that I was the lead lawyer representing this physician for the early months of the case, although I eventually withdrew as his attorney.
Case Background
And now for the background. Jay Martin Barrash, MD, is a licensed neurosurgeon of many years in the Houston area with a healthy professional income from rendering medico-legal services such as providing expert witness reports, doing independent medical examinations, and testifying under oath at deposition and in trials.
This had become a solid six-figure business for him, and in one year, court records showed, his earnings were said to exceed $500,000. This is not surprising, since fees on becoming an expert can be quite lucrative for physicians, who sometimes earn into the four figures per hour for this work.
Barrash, who had been a member of the AANS for many years, testified in a medical malpractice case on behalf of an injured patient who sued another neurosurgeon, also a member of the AANS. That case ultimately settled.
Later, the defendant neurosurgeon complained to the AANS that Barrash violated the AANS rules on providing expert opinion services. AANS went through its usual procedures for such cases and ended up sanctioning (censuring) Barrash for violating its rules. Some time thereafter, he resigned from the association.
Close to 2 years later, in 2013, Barrash sued the AANS on a variety of theories, principally for violating his due process rights in how it went about charging him and conducting its administrative proceedings.
The case, known as Barrash v. AANS (Dkt. No. 4:13-cv1054 [S.D. Tex., Houston Div.]). was assigned to the Hon. Keith P. Ellison, a highly respected and credentialed judge. Ellison's final judgment is now on appeal because he did not reverse all the grounds for the censure, but it appears to be the first time any physician who in court challenged the AANS managed to put at least a "crack" in the armor of its medical expert rules. Was this a fluke, or is it the beginning of a "Berlin Wall" ready to cascade down for medical experts?
The AANS program for testifying is looked to by other similar professional societies because it is the oldest and -- until now -- the most successful. Besides the AMA also addressing physicians testifying as experts, such rules have been the subject of much debate regarding their role in the American legal justice system that itself dictates the relevancy and reliability of expert testimony.
The situation that put Barrash in the AANS cross hairs centered on his opining in the malpractice case without first looking at a critical x-ray, and then also providing "improper advocacy," i.e., biased testimony in a deposition relating to the consequence of a post-surgery infectious process that developed in the injured plaintiff.
Once the complaint was filed against him, the AANS was required to follow its internal and published procedures, with notice provided to Barrash so that he could prepare a defense against all the accusations and then be given the opportunity to present that defense.
Barrash contested all charges. He prepared and presented his case throughout the AANS proceedings with his lawyer, a fellow neurosurgeon too. The AANS committee (all neurosurgeons) that heard the evidence then drafted its recommendation that then went up to the AANS board of directors for review -- and revisions if necessary -- and then to the general membership for an up-or-down vote at the membership's next annual meeting.
According to an Oct. 14, 2014 court opinion, on April 12, 2011, the AANS posted on its website:
"Dr. J. Martin Barrash, following an appeal to the AANS general membership on April 11, 2011, has been censured for giving expert testimony without having seen imaging studies relevant to that testimony, and for failure to provide unbiased testimony during part of a deposition in a civil lawsuit."
New Legal Theory
Besides asserting the usual violation of due process that has been used in similar cases, I, as Barrash's lead lawyer, advanced a new theory which ultimately led to some relief.
The theory was based on the AANS breaching its "contract" -- which is what the AANS' regulations for medical experts are considered to be part of -- with Barrash when it asserted that Barrash provided improper advocacy when he gave his opinion on the consequence of the post-surgery condition. The words "improper advocacy" neither appeared in the AANS rules or bylaws for expert opinion services nor their interpretation in any official AANS document.
Ultimately, the breach of contract count was dismissed, but not before the court ruled that the issue underlying the breach of contract theory -- Barrash's failure to provide unbiased testimony (i.e., improper advocacy) becoming one of the two grounds he was censured on -- should be considered in the part of the case dealing with the AANS's alleged violation of Barrash's due process rights.
The case involved lots of legal research and reams of paper, as well as depositions from Toronto to San Diego to Memphis to Santa Fe to Houston and Seattle. Barrash also retained two experts opining on standards of care related to the medical malpractice case and to his own expert opinions; neither addressed due process provided him by either the AANS rules or its administrative process.
The AANS also retained one such witness, no doubt to counter Barrash's two; however, such outside experts are typically not needed to prove a violation of due process in these type cases. However, the court did not have to rely on any of what these experts had to say in deciding whether Barrash was given due process or not. To add to the expense, lawyers on both sides enlisted other experts to opine on damages that either occurred or did not occur due to him being censured, and that is not to mention lawyer fees and costs. All in all, it was a very expensive procedure that did not result in a victory for Barrash.
A Crack in the Rules
In his decision of Nov. 4, 2014, Judge Ellison affirmed the AANS' censure of Barrash for not reviewing the x-ray film; however, he overturned the assertion of improper advocacy -- that is, the claim that Barrash " 'fail[ed] to provide unbiased testimony during part of a deposition in a civil lawsuit.'" The court's decision also noted that Barrash's current lawyer -- who took over after I withdrew -- conceded that he "cannot recover damages unless the April 12, 2011 censure ... is reversed in full."
The Court issued a final judgment on Nov. 19 directing the AANS to permanently expunge wording in the censure about unbiased testimony and to publish the censure, but in modified form. It did so (AANS Neurosurgeon [Vol. 23, No. 4, 2014]),: "Modification of Notice of Censure: On April 11, 2011, the following notice of censure was published regarding Dr. J. Martin Barrash: 'Dr. J. Martin Barrash was censured for giving expert medical testimony without having seen the imaging studies relevant to that testimony, and for failure to provide unbiased testimony during part of [sic] deposition in a civil lawsuit.' The latter basis for censure has been expunged."
So what are the lessons, if any, to be gained from this case for physicians wanting to become experts in a legal case? First, know your organization's rules on providing expert testimony. Next, it is an exceedingly expensive proposition for any physician that is sanctioned by his or her professional organization for breaching such rules with little, if any, expected return. Again, courts prefer staying out of the fray so long as a minimum amount of due process is provided.
But, as stated atop this post, there now exists a crack in such rules, though it is questionable whether the glass can now be considered half full or half empty. After all, even if a group's rules are found not lawful, they can be changed to comply with judicial findings. But, because this Texas physician still remains tagged with the "censured" label by a noted federal judge -- and absent an appeals court reversing that -- it must be questioned whether all the time, energy, emotion and, once more, great expense is ever worth it, certainly where having 14 or so words deleted from a sanction while still remaining censured is really gaining any ground.
In this sense, the decision by Ellison as it now stands aligns with much if not all of prior decisions in this area of law.* Third, and maybe most importantly, while a glimmer of hope could exist because the Damoclean Sword held so long over the heads of physicians who want to act as experts may be inching upwards due to the Texas case, it is sage advice for any physician that might wish to offer expert medical opinions to leave their ego "checked at the door" before thinking their standing in the medical profession trumps spending considerable funds, only to possibly "win the battle but lose the war."
* The most noted of such decisions is the 2001 opinion by the 7th Circuit United States Court of Appeals in Donald Austin v. AANS. The well-known Judge Richard Posner wrote the decision of the court.