What if an opposing expert lies?

Expert witness legal precedent A North Carolina case has not only directed the focus of potential malpractice solutions to the "expert witness," but has dramatically raised the stakes for medical malpractice expert witnesses. In so doing, this case has raised some very thorny medical-legal issues. The case involves Dr. Gary Lustgarten, a neurosurgeon. In 1997, Dr. Lustgarten reviewed a potential case of medical malpractice against two neurosurgeons. A man with a history of hydrocephalus from infancy underwent a neurosurgical procedure. Within 24 hours the patient suffered a respiratory arrest, and soon thereafter died.

Dr. Lustgarten testified at deposition that the defendant physicians, in many different ways, committed medical malpractice. The defendants settled their case. Subsequently, one of the defendant neurosurgeons filed a formal complaint against Dr. Lustgarten with the American Association of Neurological Surgeons (AANS). This is a private organization. The eligibility requirements consist of board certification and adherence to the bylaws, rules and regulations of the organization. Its policy regarding testimony in medical malpractice cases is available to all its members.

Not content to punish Dr. Lustgarten solely through the sanctions of AANS, the losing defendants also filed a complaint with the Medical Licensing Board of North Carolina.

In 2002, the North Carolina board revoked his license and concluded that Dr. Lustgarten's testimony violated the state's interest in maintaining truthful and competent testimony. It stated that his testimony departed from and failed to conform to the standards of acceptable prevailing medical practice or ethics of the medical profession.The North Carolina board said that Dr. Lustgarten, in his expert testimony, had committed an act that was contrary to honesty, justice and good morals.

Dr. Lustgarten appealed this decision to the North Carolina Superior Court for judicial review. The court said that although the board cannot punish Dr. Lustgarten for "repeatedly misstating the standard of care while testifying as an expert witness," it can punish him for making "factual assertions, without an evidentiary or good-faith basis."

It should be noted that action by a state medical licensing board against a physician who did nothing more than express an expert medical opinion by testifying in a medical malpractice case is unprecedented. Dr. Val will have to hope that this precedent continues if she wishes to file a complaint against her adversarial expert witness.