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Peer Review Boards Seen as Detrimental to Plaintiffs' Med Mal Suits

August 19, 2005

The increased prevalence of peer review boards and their proceedings has some personal injury attorneys in Florida worried that these bodies may be preventing some physicians from testifying for plaintiffs in medical malpractice suits.

At the center of the growing controversy is the American College of Obstetrics & Gynecology and its practice of censuring such physicians. There is no reported case of an ACOG censure being admitted in a Florida court, but the issue has come up in pretrial proceedings. ACOG is a voluntary professional organization, and membership is not necessary to practice medicine. But many doctors fear damage to their reputation and their ability to find jobs will follow an adverse finding by an ACOG peer review board.

Increased peer review and censure has recently been cited as a tactic to chill plaintiff-side testimony in 2003. Since that time, medical associations have stepped up their efforts to rein in experts, making it harder for plaintiff attorneys to find physician witnesses and bring cases.

"In the last couple of years, doctors have been very reticent to speak with you, let alone take a case," said a partner at Coral Gables-based Colson Hicks Eidson. "They don't even want to take the initial phone call. They say, 'I can't afford to get my name out there as a plaintiff expert.' "

Under Florida law, an expert opinion is required to file a medical malpractice case. South Florida plaintiff attorneys fear that as a result of the pressure from medical groups the expert well is drying up, making it harder to file and litigate medical malpractice cases.

Opponents of peer review boards also claim that the ACOG peer review lacks any semblance of due process and bullies doctors into a code of silence. "It's a conspiracy of silence," Leighton said. Along with co-counsel, he argued against admitting one expert's censure and resignation in a Seminole County case, contending in part that the peer review process was designed to help insulate doctors from med mal suits by silencing plaintiff experts.

From the ACOG peer review program's start until June of this year, the organization had received 20 complaints of unethical testimony and had issued censures in three of the cases, according to trade publication OB/GYN News. The article did not specify the status of the remaining 17 cases. An ACOG spokesman declined to comment on the peer review process, saying it is confidential. And ACOG did not respond to a request for an interview with its president, Ralph Hale.

The peer review process has also created controversy within the ranks of ACOG, with some members choosing to resign rather than be judged by their peers for what they say on the stand and in depositions. "I'm sure [med mal experts under ACOG review] are not happy," said Philadelphia OB/GYN Arnold Cohen, ACOG member and ardent proponent of the peer review process, "but there are people that feel there are expert witnesses that are perpetuating the medical liability crisis."

One expert's experience is telling because his censure by the ACOG has come back to haunt him many times. By all appearances, nationally renowned perinatologist Barry S. Schifrin was a respected mind in his field as he chaired a lunchtime seminar at the ACOG's 2004 national conference in Philadelphia. But as Schifrin addressed his ACOG colleagues on avoiding medical malpractice, the doctors group was well along in the process of affirming a censure of the physician for his plaintiff-side testimony in a medical malpractice case.

An ACOG peer review board slapped Schifrin, who is based in Los Angeles, with a censure in February 2004, and in July Schifrin lost his final appeal to have it overturned. Later that year, he resigned, partly in disgust at the way his case was handled.

The censure is finding its way into the hands of defense attorneys who depose Schifrin, including those involved in a recent Seminole County case that resulted in a $24 million verdict. "The censure came out in depositions," said a partner at a firm who represented the plaintiff in that case. "[The defense] went after him for the censure and they went after him for not being in ACOG." Schifrin's censure is just one example of the ACOG campaign to quell testimony against its members in medical malpractice cases, according to targeted doctors and plaintiff lawyers.

The peer review push is not unique to ACOG. The trend began with the American Association of Neurological Surgeons' peer review process and has since expanded to groups like ACOG and the Florida Medical Association, which has placed reining in expert testimony high on its agenda. AANS formally began its peer review process in 1983, but began more aggressively using the process in recent years.

While many in the medical community laud peer review as vital to curbing irresponsible expert testimony and lowering malpractice insurance rates, plaintiff experts and attorneys claim the process is unstructured, unfair and designed to intimidate. "What they're trying to do is blacklist experts so people can't exercise their rights in the civil justice system," said one plaintiff's lawyer in Miami.

ACOG began its peer review process in 2002, the same year it sounded a "red alert" on increased medical malpractice litigation. Malpractice insurance premiums have risen across the board for physicians, and OB/GYNs have been particularly hard hit. ACOG, like many physician organizations, blames the rate hikes on lawsuits and excessive jury verdicts. The increased chance for bad outcomes before, during and after the delivery of babies has made obstetricians a common target of malpractice suits. The tragedy of a dead or permanently injured baby often resonates with jurors, leading to high-dollar verdicts when claims against OB/GYNs are successful.

Plaintiff attorneys and the medical associations both recognize that experts are the lifeblood of medical malpractice cases. With no expert to tell the jury what the standard of care is in a medical situation and what went wrong in a particular case, it would be impossible for an attorney to convince a jury of medical malpractice. Finding doctors to testify for a plaintiff case has never been easy, according to plaintiff attorneys.

"You've got to start with the premise that on a medical malpractice case, you can't get local doctors to testify against other local doctors," said an attorney in Miami. "So we have to go out of town to start with. So when the out-of-town doctors clam up because of this intimidation, it makes it a lot harder."

Dennis S. Agliano, a Tampa physician and president of the Florida Medical Association, disagreed with the concept of peer review as intimidation. He said given the failures of the court system to curb bad testimony, professional associations had to step into the breach. "Good doctors get hurt by very well groomed experts who do this regularly," Agliano said. "They can go up there and sound like a Nobel Prize winner. Some people could sell the Brooklyn Bridge on the stand. On the medical side of the equation, the doctor that made the testimony at fault needs to be held accountable." As an FMA leader, Agliano has been instrumental in setting up a physician review process for his organization.

ACOG's literature and publications over the past thee years have spoken in depth about the organization's peer review process and its plans for the future. ACOG and the other organizations taking aim at expert testimony insist that they are equally willing to go after defense and plaintiff experts, but much of the literature and rhetoric surrounding the new process paints it as ACOG's panacea to the medical malpractice crisis.

In a transcript of a round table panel discussion sponsored by ACOG's official publication, Contemporary OB/GYN, and published on Jan. 1, ACOG leaders lambasted the current tort system. Former ACOG president Albert L. Strunk railed against juries, deeming them incapable of dealing with the questions of expert qualifications.

"Determining whether a witness is an expert is something the judge should grapple with and not turn over to the jury," Strunk said at the round table. "Allowing jurors to make that determination results in the kind of totally unpredictable, totally random outcomes that we're currently experiencing." For Strunk the antidote to capricious juries is the watchful eye of ACOG monitoring its members who earn money testifying as experts. "I think we are obligated to make every effort that we can to subject experts to the scrutiny of peer review," he said at the round table.

Attempts to introduce professional associations into trials have largely been unsuccessful. Schifrin said in the year since he's been sanctioned, he's never seen a judge allow the censure and his subsequent resignation admitted as evidence.

The most recent attempt was in the Seminole County case where the parents of Raven Shoaf sued Orlando obstetrician Michael Geiling for improperly using a vacuum during delivery, permanently damaging Raven. The jury returned the $24 million verdict against the obstetrician in June. But before the trial began, Geiling's attorneys pushed to make Schifrin's censure known to the jury.

To keep the censure out, the plaintiffs' attorney argued that ACOG was essentially a "defense organization" and that, unlike the state bar or the state medical board, it was a professional association with no licensing authority. "Being that there was no due process foundation to it," he told the judge, "it is some third party's opinion about another person." He asked the judge to prevent the defense from asking Schifrin about the censure during trial and also requested that the censure not be discoverable by the defense. Schifrin had refused to turn over documentation regarding his ACOG censure to the defense, despite their repeated requests to see it.

Doctors irked by the peer review process have filed a handful of suits to have the peer review system declared unconstitutional. Donald Austin, a neurologist sanctioned by AANS, filed suit in 1998 in federal court in Illinois, claiming that he had been denied due process and that his ability to earn money as an expert witness had been seriously diminished. Austin lost his suit in summary judgment and appealed to the 7th U.S. Circuit Court of Appeals, then to the U.S. Supreme Court. In 2002, the Supreme Court declined to take up Austin's case, ending his legal battle.

When ACOG announced its peer review process, it cited the court's decision in the Austin case as a major factor. A case pending at the Florida Supreme Court, Fullerton v. Florida Medical Association, also challenges the peer review process, claiming that it is being used for something beyond what it was originally intended.

As some doctors fight in the courts against peer review, Schifrin has no plans to litigate his way back into ACOG's good graces. He continues to testify in medical malpractice cases and says his censure and resignation have had little impact on his career, which, having spanned four decades, is already well established. Since his resignation, Schifrin has severed his ties with ACOG, an organization that one year ago called on him to speak at its national conference. "The one and only communication from ACOG since my resignation is that I may not display my ACOG diploma," Schifrin said. "That was all."