Workers take pictures of naked elders in Nursing Home

GALAX, Va. -- Two workers at the Waddell Nursing and Rehabilitation Center in Galax have been charged with taking naked photographs of patients without their consent.

The Galax Police Department began the investigation after receiving a tip. As a result of the investigation, police arrested Sharon Ann Walker, 29, and Livia Dawn Crisan, 25. Crisan's age was originally listed as 35. Police corrected her age Friday afternoon.

Police said the incidents happened between April 1 and July 15. Wooddell said the two had snapped the pictures using their cell phones.

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NY man serves jail time in nursing home abuse case

A former certified nurse assistant at a Tupper Lake nursing home has been sentenced to time served after pleading guilty to abusing an elderly patient.
John Ette, 42, of Tupper Lake, was arrested in May for physically abusing an 88-year-old resident of Adirondack Medical Center's Mercy nursing home on Oct. 20, 2008.
The state Attorney General's Office said Ette admitted to investigators that he struck the bedridden woman in the face, grabbed her arm and pushed her into her wheelchair. She suffered severe facial bruising and a broken collarbone.
Nursing home staff noticed the woman's injuries the next morning and notified AMC officials, who reported the incident to the state Department of Health. The matter was then referred to the Attorney General's Office for investigation.
Ette was initially charged with endangering the welfare of a vulnerable elderly person in the second degree, a felony; endangering the welfare of an incompetent or physically disabled person, a misdemeanor; and willful violation of health laws, a misdemeanor. He could have faced up to four years behind bars if convicted on all counts.
You will note from an earlier post that a Massachusetts CNA was undicted for criminal charges charging her with abuse of nursing home residents.

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Elder Abuse Death Rate 6X Higher!

A recent study reveals some disturbing data on senior care and elder abuse. According to the research conducted at Rush University Medical Center in Chicago, the risk of death increases significantly—nearly six-fold—when seniors do not care for themselves, reported Medicine Net. The findings appear in the August 5th issue of the Journal of the American Medical Association (JAMA).
Also, when seniors are abused—emotionally, physically, financially, sexually, or through neglect—the risk of death increases by more than double, according the study, said Medicine Net. “Elder self-neglect and abuse really have severe consequences,” said Dr. XinQi Dong, study author and associate professor of medicine at Rush, quoted Medicine Net. According to Dr. Dong, the research indicated that “it’s not just the cognitively impaired,” citing patients with Alzheimer’s disease and dementia, affected by these trends, “Even more capable seniors face a higher risk of premature death from self-neglect,” he said, reported Medicine Net.
According to Dr. Thomas Gill, who authored an accompanying editorial in JAMA, self-neglect in the senior demographic is the most common reason a patient is referred to adult protective services, said Medicine Net.
We’ve been following the widespread issue of nursing home abuse for some time. Last year, the former Bush administration finally published the names of 131 of the nation’s worst nursing homes. And, in a harrowing example of the widespread problem of elder abuse and negligence, last year, the family of a deceased Norwich, Connecticut man filed what is believed to be the first wrongful death lawsuit against officials at Connecticut’s largest nursing home chain: Haven Healthcare. The suit claimed that misappropriation of Haven funds by Chief Executive Officer Raymond Termini contributed to “deplorable conditions.”
In that case, the family also sought permission to sue the state departments of public health and social services, and Nancy Shaffer, the state’s long-term care ombudsman, for failing to investigate and act on complaints lodged by the family.
Self-neglect, or one’s inability to care for oneself, involves not providing sufficient “food, water, clothing, shelter … necessary medications, and not following basic hygiene practices,” said Medicine Net, citing both the study and the accompanying editorial.
The team looked at 9,318 Chicago residents over the age of 65, who were participating in the Chicago Health and Aging Project, said Medicine Net, which said the review looked at the period from 1993 to 2005; social service agencies reported self-neglect on 1,544 participants and abuse on 113. In seven years, over 4,300 participants died.
Earlier this year we wrote that two nursing homes in the Rochester, New York area were embroiled in an abuse scandal in which one certified nurse aide at the Kirkhaven Nursing Home in Rochester, and another who worked at the Edna Tina Wilson Living Center in Greece, NY, were arrested as part of a state-wide probe into nursing abuse and healthcare fraud.
Unfortunately nursing home abuse is a common crime. The National Center on Elder Abuse estimates at least one in 20 nursing home patients has been the victim of negligence and or abuse, though it concedes that the number is probably higher. According to the National Center’s study, 57 percent of nurses’ aides in long-term care facilities admitted to having witnessed, and even participating in, acts of negligence and abuse. Data from the U.S. Centers for Disease Control and Prevention show that nursing home neglect played role in the deaths of nearly 14,000 nursing home patients between 1999 and 2002.

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Doctor Accountability - Let's see Doctor's Records

In a recent op-ed piece, the CEO of the New York State Health Foundation proposed setting up patient compensation funds as part of a comprehensive reform package. What he failed to specify was who would supply the funding.
If the doctors and insurers were to kick in without raising their rates, the idea sounds promising. But not if the public is expected to be the funding source.
A better suggestion is to put on the Internet the names of all doctors in the state who have been sued for malpractice in the last 15 years, the amount of any settlement or dollar award to the injured party and any action taken by the state medical society to chastise the defendant in the action.
If the public is given the legal right to look at the malpractice record of doctors in advance, the amount of malpractice litigation would greatly decrease.
Unfortunately, the lobbyists working for the doctors control the state Legislature.
The Golden Rule states "He who has the gold rules."

for more see article.

Health Care Reform in the face of "Gouging" excessive Salaries

There is a simple answer to the far right's new favorite chant against health care reform — "What's Wrong With Profit?". Nothing. There is nothing inherently wrong with making a profit. But their question misses a point.

Profit, for a while now, hasn't been a problem for the health insurance industry. During the 20 years or so between our attempts at reforming health care, the industry's done quite well. CEOs like United Health's Stephen Hemsley — with $13.2 million in earnings from 2007, and stock options totalling three quarters of a billion dollars — have done quite well. He's in good company.
In the same year, the CEOs of the top seven for-profit insurers averaged $14.2 million in compensation. According to one report, the industry's profits were $65 billion in 2007, down from $67.6 billion in 2006, but well above $48.8 billion in 2005. In 2003, they doubled their profits from 2002.

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Federal rule change affects nursing home litigation

Article from:
Lawyers USA
Article date:
March 3, 2009
A federal rule change slipped into effect in the waning days of the Bush administration could cripple nursing home malpractice litigation.
The rule change (45 CFR part 2) classifies state nursing home inspectors and Medicare and Medicaid contractors as federal Health and Human Services employees, and allows them to testify in third- party lawsuits only with the approval of the federal agency's head.
The change was issued last September, but began attracting the attention of plaintiffs' lawyers in November when state health departments started refusing to comply with requests for documents and depositions.

AZ malpractice claim settled after birth injures baby, mom

PHOENIX -- Maricopa County will pay $312,000 to the family of a boy who suffered permanent injuries during childbirth more than six years ago. The county's Board of Supervisors approved the settlement Wednesday. According to a medical malpractice claim, the medical staff at Maricopa Medical Center failed to offer Estela Cruz a Cesarean section in May 2003 despite ultrasound scans that depicted a baby of "enormous size." As a result, the claim says her son Jose was delivered vaginally, causing severe damage to his right shoulder as well as injuries to the mother. The claim says Jose Cruz weighed 12 pounds, 1 ounce when he was born. The medical malpractice claim was filed against MedPro, the hospital's contracted physicians group. Maricopa County operated the medical center at the time. MedPro and the county settled the case for an undisclosed amount and county's portion was $312,000.

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Nursing Home Resident Falls to Death - Negligence suspected

The Chicago Police Department said it appeared to be a suicide. The Cook County Office of the Medical Examiner said it was an accident. But when 84-year-old Bennie Saxon fell four stories to his death May 4 at a predominantly black South Side nursing home, a lawyer retained by his family said it could be neglect.

An investigation by The Chicago Reporter found that the facility has the worst rating a nursing home can get—three times the number of lawsuits of half of Chicago nursing homes.

see nursing home fall article

Kindred Settles Abuse Lawsuit during trial

Read from the webpage of a Massachusetts Nursing Home Attorney recently:

"Kindred East, LLC DBA Franklin Nursing and Rehabilitation recently settled an assault/abuse lawsuit against them during Trial in Massachusetts Norfolk Superior Court in front of Judge Patrick Brady. Opening statements were given to the Jury by Attorney Hamill and the first witnesses testified. Descriptions by the witness of several assaults committed against the plaintiff and rough treatment and swearing were described. They were committed by a 53 year old nurses aid, Bernadette Stackpole. The following day as 6 more witnesses sat in the hallway ready to testify, Kindred settled the case for $425,000. Kindreds original offer was $10,000."

See the complete Kindred Abuse article

Indictment alleges nurse was 'Angel of Death'

Daily Herald Indictment alleges nurse was 'Angel of Death': "A worker at a McHenry County nursing home gave patients dangerous doses of morphine and other drugs in 2006 with the permission of a facility director who told her to serve as an 'Angel of Death,' according a McHenry County grand jury.
Both women now face multiple felony charges alleging they jeopardized patients' lives, but authorities stopped short Friday of accusing either of killing or intending to kill the home's residents.
The indictments come after a 15-month state police investigation into the home sparked by allegations that a former employee had performed as many as six mercy killings at the Woodstock Residence nursing home in 2006."

Article

Kindred Loses 2 Abuse cases $750,000 ordered paid to Victims Families

Two Nursing Home Verdicts against Kindred: $750,000 for emotional distress damages

Several verdicts of interest:Two patients were treated inhumanely at a local Nursing Home. Suit was brought to hold the Nursing Home accountable. The nursing home did not treat these cases seriously at first only offering to settle one case for $10,000.

On June 4, 2007 two Plaintiffs represented by Hamill Law office of Quincy, MA. were awarded verdicts in two Nursing Home Abuse cases:

Client Clara H. was a 105 Nursing Home patient who we were able to prove was changed 'roughly' and inappropriately by a certified nurse aid. The Judge found that the abusive change was 'not isolated' and awarded her estate $300,000 for verbal and physical abuse causing emotional distress. There was no separate claim for personal injuries.

Jim H. was an 86 year old Nursing Home patient who was also changed 'roughly' in a manner that was painful and inappropriate. The Judge found that the abusive change was 'not isolated' and awarded his estate $450,000 for verbal and physical abuse causing emotional distress. There was no seperate claim for personal injuries.

Both clients had been dementia patients who were deceased at the time of trial. Both Verdicts were against Kindred Healthcare in Franklin,MA.

See Full Kindred Nursing Abuse article

Texas Caps Chill Victims Lawsuits

Nearly three years after Texas moved to cap the amount of jury awards, the number of lawsuits filed and the size of those awards are shrinking

When news of a $606 million jury award hit the news wires last year, Michael Sawicki's phone was ringing off the hook.
People wanted to know if Sawicki, a Dallas lawyer, could secure the same justice for their medical malpractice claims that he secured for the survivors of William Jameson, who a Dallas County jury determined was dosed with a fatal level of chemotherapy drugs from his doctor.
But when Sawicki answers calls from those interested in filing medical lawsuits, he must determine if the cases merit the time and expense they require. He filed the chemo suit a week before Texas' major 2003 tort reform law took effect, limiting non-economic damages to $250,000 per physician, up to $750,000 if another doctor and hospital are involved.
Another cold reality: The chemo suit netted only $2.5 million, the amount of insurance coverage the medical practice carried. Attempting to collect any more would likely prompt the physician's clinic to file for bankruptcy.
A year after landing the second-largest jury award in the United States, Sawicki is far from being set for life; the scarcity of money from medical malpractice suits has prompted him to branch out into business law and general negligence cases.
"While the jury might feel the plaintiffs might deserve it, the legislators haven't heard the evidence and have put caps on awards," said Sawicki, who practices at the firm Brown, Sawicki & Mitchell L.L.P. Few lawyers would argue that jury awards are becoming smaller in Texas, and that the number of medical cases has dropped.
What's more a point of discussion: Has the backlash against major jury awards gone too far?
'Hellhole' no more?
The Texas Gulf Coast has been consistently named a "Judicial Hellhole" by the American Tort Reform Association for the past four years, mainly because of major verdicts in Beaumont and courts nearby. Many cases are heard in that area because of the area's blue-collar juries, one of which handed down the $253 million Vioxx award in Angleton, a town about 40 miles south of Houston. It was the third-largest award handed down by a jury in the United States in 2005, according to Lawyers Weekly USA, which monitors jury awards across the country.
Headlines announcing such awards are deceptive because juries aren't told of lawsuit caps before they hand down their verdicts, or that judges ultimately decide how much money is awarded, many lawyers say.
Yet public reaction to such awards is what's triggering a juror groundswell elsewhere.
"In the 10-years-plus I've been doing this in Texas, I've seen a shift in the mindset of the population," said James Lowery of the law firm of Kirk & Lockhart. "I think the tort reform is the result of the shift of the mindset. The people I've encountered in the jury selection process ... have developed a feeling that it should not be a lottery."
Median jury compensatory awards have continued to shrink in Texas, from $23,150 in 2000 to $12,000 in 2003, according to Pennsylvania-based Jury Verdict Research, which tracks large jury awards nationwide. Texas' median jury award in 2003 was less than a third of the national median, the organization reports.
Lowery said he successfully defended a client in Beaumont in 2003, and has handled numerous toxic tort cases.
He said he saw jury awards drop before tort reform took hold.
Changes in the law
In 2003, the Texas Legislature passed House Bill 4, the most comprehensive tort reform bill in state history, capping non-economic damages in medical liability cases at $250,000 per claimant. Then, Texas voters approved Proposition 12, a constitutional amendment to protect HB 4 from legal challenges. Last year, Senate Bill 15 required medical proof from those claiming to have illnesses related to asbestos or silica. The bill also requires each case to be tried individually, instead of in groups.
Another reform in Texas includes limiting punitive damages to twice the amount of economic damages. Various iterations of tort reform have been adopted by legislators since 1987. More than 40 states have engaged in some type of tort reform.
Proponents of tort reform argue that excessive lawsuits drive up the cost of virtually everything, from cars to fast food.
But opponents of the current tort reform -- such as Sawicki -- argue that current laws have gone too far.
He said that under current laws, the $250,000 cap makes it cost-prohibitive to recover damages for the very young or the aged, either of whom have little earning power. One example he cites is the elderly in nursing homes. A lawsuit on behalf of an elderly person who dies of neglect in a nursing home might result in only a $250,000 jury award.
"When you do the math on it, the average expert in a case of moderate complexity will cost $20,000 to $50,000 -- nearly a quarter of the recovery," Sawicki said.
Factoring in the survivor's award and other costs, Sawicki said it's unlikely attorneys will pursue such cases.
Yet Jon Opelt, executive director of Texas Alliance for Patient Access, said the caps for non-economic damages don't preclude plaintiffs from punitive damages in cases where physicians were negligent, or recouping the cost of medical treatment and lost wages. The alliance is a coalition of doctors, hospitals, nursing homes, health care providers and medical liability insurers working to change medical liability laws. Before tort reform, according to the alliance, in Texas the average medical liability award quadrupled from 1989 to 1999, rising from $472,982 to $2,048,541, mostly due to a surge in non-economic awards.
"Damages were so high, they might have taken on a punitive nature," Opelt said.
The stronger tort reform laws have likely dropped the number of medical liability lawsuit filings across North Texas. Where 2001 saw 487 medical suits filed in Dallas County, 2004 saw 142, according to information compiled by the Texas Alliance for Patient Access.
Opelt said he believes lawyers are still adapting to the cap on awards, and that many potential suits were filed just before the 2003 caps took effect. He said the alliance expects the number of medical lawsuits to amount to two-thirds of what they used to be.
Dallas trial lawyer Don Godwin of the firm Godwin, Pappas, Langley Ronquillo L.L.P. said he believes that before the major tort reform took effect in Texas, nearly 65% of all civil jury trials were personal injury cases, and the rest involved commercial suits and intellectual property law violations.
Now, he estimates that only 20% involve personal injuries and the rest involve commercial litigation and intellectual property laws.
Godwin said the state laws limiting jury awards might have gone too far.
He said rather than limiting punitive and non-economic damages, the state should have passed laws banning plaintiffs from "shopping" for more generous venues, such as Beaumont.
"You would still have a threat out there, policing people," Godwin said. "If you've got a senior in high school (who is a victim of medical malpractice), I think it's a little harsh to say you don't have any economic damages."
A job too well done?
"I have to work twice as hard for half has much, but it's still double what I'm worth," said Fort Worth trial lawyer Chuck Noteboom, who has landed a $102 million jury verdict against State Farm Insurance Co. and a $250 million negligence verdict against a nursing home. But, he says, major jury verdicts have all but vanished.
"It's like winning the Lotto," Noteboom said. "You read about people winning, but don't expect any money when you buy a lottery ticket."
He said a conservative groundswell has risen against labor unions, Hollywood and trial lawyers.
"They've essentially legislated trial lawyers out of existence," he said of the recent tort reforms.
Sawicki said even defense trial lawyers are going the way of the buffalo, in light of a drop in lawsuits.
Southern Methodist University law professor Ellen Pryor said 93% of jury verdicts aren't affected by the award caps.
She said research that she has read indicates the tort system overcompensates in small injury cases and underpays in serious injury cases. She said the situation usually plays itself out in traffic accidents. Many drivers unknowingly take part in a sort of "lottery," where they find themselves and other drivers underinsured when in serious accidents.
"What happens if someone gets rear-ended ... and there's a serious brain injury, and another victim becomes a paraplegic, and the driver of the gravel truck has no insurance, or has a $1 million policy. Are you going to be paid off by the other person's insurance? That's the lottery. Because there's very little self-insurance."

Don't want to be sued? Change your name!

A doctor accused in more than 100 medical malpractice lawsuits in West Virginia has changed his name in Dothan where he lives.
Dr. John Anderson King is now Christopher Wallace Martin after filing a petition for a name change at the Houston County Probate Office on March 14, The Dothan Eagle reported Saturday.
His address on the petition is the same address for Dothan attorney Richard Crum, who defended King in 1999 after the Jackson County Hospital in Marianna, Fla. accused him of stealing a medical logbook.
King agreed to a pretrial order dismissing the charge but requiring him to pay a fine and enroll in a supervision program, and left the hospital soon afterward.
Crum could not be reached for comment by the newspaper, which left messages at his home and office.
King's reason listed for changing his name on the petition was "identity theft by former co-worker."
King, who is licensed in 14 states - including Alabama - as an osteopathic physician, has led a career plagued with problems.
King's tenure at Putnam General Hospital in Hurricane, W.Va., lasted from December 2002 until June 2003.
The Charleston Gazette in West Virginia cited records showing King conducted more than 500 surgeries during that time, costing more than $7 million. He was suspended after a peer review of his surgeries concluded many of them were "unnecessary."
Most of the medical malpractice complainants claim chronic pain since King operated on them, according to the report. Others claim non-sterile instruments were used in the surgeries.
The Gazette also chronicled King's problems while practicing in Jasper, Ala., Oklahoma City and Marianna. He and a hospital in Jasper settled a medical malpractice suit for $550,000 in 1994 after a woman became a paraplegic following spinal anesthesia administered by King.
He and two other doctors paid a $250,000 settlement in 2000 to a man who claimed medical problems following an operation at Jackson County Hospital. In 1995, he was fired from Hillcrest Health Center in Oklahoma City.
The Alabama Board of Medical Examiners also reprimanded King on Feb. 4 of this year, assessing a fine and ordering him to take a course on medical ethics, the Eagle reported.
King has not been found to have made any false statements on his name change petition, according to Houston County Probate Judge Luke Cooley.
The probate office confirmed that King had been living at the same address for at least four weeks before applying for the name change.
He also indicated on his petition that he did not have any outstanding judgments against him and had not been convicted of a felony. He indicated he was involved in pending litigation in West Virginia relative to former employment there.
Cooley said there is no requirement to do background checks on people who request name changes.

AMA Muzzles Doctors as Witnesses - the "White Wall"

The "White Wall"
A new code of conduct is taking hold of the medical profession: First do no harm—to your colleagues.
DR. GARY LUSTGARTEN, A FLORIDA NEUROSURGEON, testified in 1998 that mistakes by doctors in Fayetteville, N.C., led to the death of a 19-year-old patient, Michael Hardin. Hardin had depended on a shunt to drain fluid from his brain since he was a child, and the shunt became clogged. In 1995, he went to the Cape Fear Valley Medical Center for emergency surgery to have it repaired. Within hours of the surgery, he had a heart attack. He died 18 days later. His mother sued the hospital and the surgeons who treated him. In the ensuing trial, Lustgarten stated that the repair did not clear the blockage, faulting the medical staff for not more closely monitoring the pressure on the young man's brain. Lustgarten suggested that Dr. Bruce Jaufmann, one of the surgeons, may have "falsified medical records to protect his associate" when he wrote that fluid did not spurt out of the shunt during surgery, which would have indicated too much pressure on the brain. The case settled for more than $2 million, and the family abandoned their claim against Jaufmann as part of the settlement. Four years later, though, a still-angry Jaufmann filed a complaint against Lustgarten with the North Carolina Medical Board, alleging that it was Lustgarten who had "testified falsely" at trial. The North Carolina medical board rarely revokes the license of any doctor, much less one who has not hurt anyone or committed any criminal offense. In 2001 and 2002, the board allowed five physicians to continue practicing even after they were found to have compromised patient care, abused drugs, sexually abused patients, or engaged in violent behavior. Lustgarten was not so lucky. In 2002, the board held a hearing without him or his attorney, as Lustgarten had been subpoenaed to testify in court in another state on the same day. On the strength of statements from Jaufmann, his lawyer, and another expert witness, the medical board charged Lustgarten with giving "disparaging, demeaning, or impertinent responses" on the stand and "totally unsubstantiated, inflammatory" testimony. It revoked Lustgarten's license, the first time that any state medical board revoked a doctor's license for giving court testimony. Lustgarten's lawyer, Seth Cohen, argued that his client's testimony was not fraudulent and that it constituted protected free speech. He pointed out that Lustgarten hadn't been the only expert to testify that Hardin's doctor was negligent. And even if he was, Cohen added, "there will always be a battle of the experts" in malpractice cases. A state judge reversed five of the board's six claims against Lustgarten, and last November the board voted to suspend Lustgarten's license for a year rather than revoke it. Medical malpractice trials involve competing accounts of expert witnesses. If doctors refuse to testify or are prevented from doing so for plaintiffs, lawsuits cannot go forward. In 14 states, a physician must verify that a lawsuit has merit before it can be filed, and it's nearly impossible in most other states to advance to trial without an expert. At the federal level, the Supreme Court in the 1993 Daubert v. Merrell Dow Pharmaceuticals case toughened the standards for judges vetting expert witness testimony. That rule, which has been adopted by most states, represented a major victory for the American Medical Association, which filed a brief in support of stricter controls on expert witnesses, arguing that judges weren't keeping "junk science" out of the courtroom. As the medical establishment has made tort reform—and restrictions on medical malpractice lawsuits—its top legislative priority, it has gone beyond seeking to limit who can testify as expert witnesses and taken steps to muzzle them altogether. Professional medical organizations have strongly discouraged members from testifying on behalf of plaintiffs. A new nonprofit organization, the Coalition and Center for Ethical Medical Testimony, or CCEMT, was set up to educate the public about what it terms "hired guns." The sum of these efforts is that doctors like Lustgarten are finding their careers on the line for taking the witness stand. DOCTORS DON'T LIKE TO TESTIFY against their colleagues. They rely on each other for professional guidance and patient referrals, so speaking out against colleagues can cost them associates and impact their bottom line. But self-interest is not the only, or even primary, reason for their reticence. Many doctors believe that genuine malpractice is rare. In 1988, Harvard researchers found that most of the 47 physicians they polled were reluctant to label substandard care as negligent, and they generally didn't believe that victims of that inferior care deserved compensation. Expert witnesses willing to pass judgment on another doctor are therefore a scarce commodity, and they can charge a high price for their services. A good witness can earn as much as $750 an hour, plus travel expenses that can range from $2,000 to $10,000 a day. Lawyers have a particularly hard time finding a doctor to testify against another doctor in the same town. The predicament led Barry Boughton, a retired Michigan attorney who now volunteers for the advocacy group Public Citizen, to use experts from the medical school faculty at the University of Michigan as witnesses. The faculty tended to be more outspoken because they were more insulated from peer pressure and often had to repair damage done by doctors getting sued. "Initially, they felt it was their obligation to speak out," Boughton said. But worried that in-state testimony could affect patient referrals from around the state, the university contemplated barring faculty from testifying in such cases, Boughton said. The school decided not to enact such a policy but, despite repeated calls, would not explain why. Seeking to reduce litigation, the medical establishment has long tried to prevent doctors from testifying. In 1998, the AMA declared that testifying as an expert amounted to the practice of medicine and could be regulated by state medical boards. As a result, doctors can now be sanctioned for what they say in a courtroom. The AMA also encourages its members to report instances of allegedly fraudulent testimony to those boards. As a result, more and more medical societies have begun to sanction members with penalties like suspension or revocation of their society membership. They have focused their energies on doctors who aid plaintiffs' attorneys. As the American Society of Anesthesiologists newsletter declared in 2002, when it comes to doctors working as experts, "As a rule, defense work is good, and plaintiffs' work is bad." These professional penalties effectively control expert testimony, because few lawyers want to hire a doctor censured as a witness by his own professional organization. Yet there is scant evidence that doctors targeted by these organizations have lied on the stand. One of the most active medical societies on this front is the American Association of Neurological Surgeons. Since AANS set up the nation's first professional conduct review board to examine expert testimony in 1983, it has reviewed the cases of some 50 physicians. It has stripped several doctors of their membership after they testified on behalf of plaintiffs in malpractice cases and suspended many others, including Lustgarten. Other groups are now following suit. The medical societies have been emboldened by the case of Donald Austin, a Detroit neurologist. In a trial involving a plaintiff who had suffered a paralyzed vocal cord during cervical fusion surgery, Austin testified that "a majority of neurosurgeons" would agree that the surgeon had been careless. The jury disagreed with his conclusion and found for the defendant doctor, who later filed a complaint with AANS against Austin. The AANS suspended Austin for violating the society's conduct code by giving unethical testimony. Austin sued the group, alleging that he had lost $150,000 in annual income from expert-witness fees as a result of the society's action, which he characterized as "revenge" for his testimony against a fellow neurosurgeon. The trial court dismissed the case on the grounds that the court didn't have the power to interfere with the internal operations of a private association. The Seventh Circuit Court of Appeals upheld the decision and endorsed the AANS's peer review system. "The Association had an interest . . . in Austin's not being able to use his membership to dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves," wrote Judge Richard Posner. "This kind of professional self-regulation rather furthers than impedes the cause of justice." The Supreme Court chose not to hear Austin's appeal. Medical groups insist that their regulation of expert witnesses is motivated by science, but some of their actions suggest otherwise. Austin's attorneys, for instance, discovered that the AANS had never sanctioned a doctor who had testified for the defense. The group also has no mechanism for anyone outside the AANS to bring an ethics charge against a member. That means plaintiffs who believe their cases have been compromised by a deceptive witness for the defense cannot pursue the same kind of sanctions that the AANS has applied to plaintiffs' witnesses. The Florida Medical Association openly discourages doctors from testifying on behalf of patients injured by doctors, telling members that their names will be posted in area hospitals if they appear as witnesses in malpractice cases. A director of the Florida College of Emergency Physicians has gone a step further, creating a website posting the names of doctors who testify. North Carolina will allow only doctors licensed in the state to give expert testimony. Medical groups in other states are pursuing similar provisions in order to block the flow of unfavorable out-of-state witnesses. Such rules could be devastating for injured patients. "It would make it virtually impossible to find an expert," said Boughton. Some doctors have also formed a new insurance company, Medical Justice, to provide resources for doctors to countersue other doctors and lawyers involved in lawsuits against them. The CCEMT represents the latest and most aggressive attack on expert witnesses. It was founded last summer by Dr. A. Bernard Ackerman, a New York dermatologist who settled a medical malpractice case in 2000 for $2.7 million. Ackerman was accused of failing to correctly diagnose a biopsy slide as cancerous; the plaintiff, Lilly Dubin, died during the trial. Despite conceding at trial that he did not review the entire slide, Ackerman launched a crusade to discredit four of the doctors who served as experts for Dubin—and to appeal the verdict against him in the court of professional opinion. He sent off a flurry of missives to medical boards, prosecutors, professional societies, and the high-profile lawyer Alan Dershowitz. In those letters, he accused Dubin's experts—including Dr. DuPont Guerry IV, a world-renowned authority on melanoma at the University of Pennsylvania medical school who had been the plaintiff's oncologist, and Dr. Milton Okun, a clinical professor of pathology at Boston University School of Medicine—of lying and engaging in "shockingly unethical behavior." Ackerman's organization, the first to focus exclusively on expert witnesses, contends that courtrooms are rife with charlatans. Ackerman said that his own experience as an expert witness revealed to him that "many of my colleagues didn't just judge the truth, but lied outright." When pressed for examples of such frauds, he referred to a case in North Carolina where he alleges that a dermatologist falsely claimed that the standard of care had been breached. He insisted that the expert "is a scoundrel and everyone knows it" but refused to give out the name of the case, the doctor, the expert, or the lawyer involved—because Ackerman himself is a hired witness for the defense. He has also accused Okun, one of Dubin's experts, of lying in a second case involving one of Ackerman's protégées. Okun denied the charge and said of CCEMT: "It's a massive attempt by doctors to limit patients' rights." PLAINTIFFS' LAWYERS AND INJURED PATIENTS are feeling the pinch. Last spring, for instance, Florida attorney Gary Friedman was about to go to trial in the case of Cristine Del Cueto, who was crippled at age 3 in 1995 during brain surgery at New York's Columbia Presbyterian Medical Center. His key expert witness was Dr. Robert Rand, a respected neuro-oncologist. Rand planned to testify that the neurosurgeon who operated on the toddler was negligent when he cut the main blood vessel to her brain during delicate surgery on her optic artery. But in March 2003, one month before the trial was slated to begin, Rand withdrew from the case. The AANS had suspended Rand for a year for testifying on behalf of an 11-year-old boy in the Midwest who had been thrown from his scooter and died. Rand had stated that the doctor treating the little boy could have saved his life by administering cortisone, which would have reduced swelling in his brain. The doctor who was sued filed a complaint with AANS arguing that Rand was wrong, and the society agreed. According to Friedman, the group had sent Rand a letter instructing him "to discontinue expert testimony for the plaintiffs or risk membership." AANS denied that it sent such a letter. Rand felt he had no choice but to withdraw from Del Cueto's case. Because the defendant was so well known—he had trained many of the country's cadre of pediatric neurosurgeons—Friedman could not find a single doctor in the country or overseas who was both an expert and willing to testify. "Everything was ready to go, and then this organization came in and said no," said Cristine's father, Ricardo Del Cueto. "You start wondering, can my daughter ever get a fair trial? Is it worth it? You're kind of pushed down a path to settle." He settled for an undisclosed sum.
by Stephanie Mencimer
In Boston, Doctors now must clear and get approval from Hospital Attorneys before they are engaged as experts!

Citizen Advocacy Group Started in Denver

The Denver-based, consumer-advocacy group Colorado Citizens forAccountability, held its first press conference and legal symposium Fridayafternoon. CCA Founder Patty Skolnik spoke before nearly 120 people as part of aweekend dedicated to medical malpractice victims and the protection of theAmerican Civil Justice System.
"We will speak out for those who have no voice," Skolnik said, referring tothose left injured through medical mistakes.DU Law professor Tom Russell served as host during the afternoon event. Heshattered several myths about the Tort Reform movement by explaining thatthe vast majority of citizens injured by companies, corporations orindividuals suffer in silence. Most never seek compensation through thecourt system. Only a small minority of those who take legal action prevail in court, Russell explained.