Attacked Expert Fights Back – and Wins

Dr. Gary Lustgarten testified the for the plaintiff as an expert in a medical negligence trial in North Carolina. Lustgarten testified that in his medical opinion that certain notes made by one of the defendant’s, Jauffman, were inaccurate. After the case settled, one of the defendants filed a complaint about Lustgarten with the American Association of Neurological Surgeons, which yanked Lustgarten’s membership. One of the defendants also complained to the State Medical Board, which pulled Lustgarten’s license.

Lustgarten appealed the ruling to the Wake County Superior Court, which affirmed. The North Carolina Court of Appeals reversed, saying “we conclude that the superior court erroneously affirmed the board’s determination, as the substantial record evidence does not permit an inference that Dr. Lustgarten made an entirely unfounded statement concerning Dr. Jauffman’s notes.”

This excerpt from the decision tells the story:

“The evidence before the Board tended to show that, at the time of his deposition in the Hardin case, Dr. Lustgarten was of the opinion that the shunt-dependent patient’s intracranial pressure had to be elevated. Accordingly, he stated under oath that he had “difficulty believing” Dr. Jaufmann’s contrary notation. Dr. Lustgarten’s skepticism was based upon CAT-scan results, mood changes in the patient, pain-medication-resistant headaches being experienced by the patient, and the lack of ventricular flow, each of which indicated to Dr. Lustgarten that the patient’s intracranial pressure was necessarily elevated. These observations provided a good faith evidentiary basis for Dr. Lustgarten’s opinion that Dr. Jaufmann’s notation was not credible.
Further, the record is clear that Dr. Lustgarten was content to state no more than his opinion that Dr. Jaufmann’s note was faulty. However, a defense attorney representing Dr. Jaufmann in the Hardin case repeatedly asked Dr. Lustgarten whether Dr. Jaufmann was lying. Dr. Lustgarten did not wish to answer this question, but he eventually stated that he was “not going to call [Dr. Jaufmann] a liar” but that, in his opinion, Dr. Jaufmann had “tried to temporize his findings and write a note that was benevolent.” Further, when the defense attorney persisted by asking whether Dr. Lustgarten was “accusing … Dr. Jaufmann of falsifying medical records,” Dr. Lustgarten responded that the issue would have to be decided by a jury and again indicated that he had difficulty believing Dr. Jaufmann’s note.”

This is one of several such cases being fought around the country. I know that there is one in Florida that is working its way through the appellate system.

In each case, the expert who is the subject of the attack testified on behalf of the plaintiff. I know of no case a state medical board attempted to take the license of a person who testified against a plaintiff. If any reader knows of a case where a doctor who testified against the plaintiff has ever been sanctioned by a state medical board or doctor organization please let me know.

Read an Law.com article about the case here. The case itself is In re Lustgarten 629 S.E.2d 886 (N.C.App. 2006); it was decided on June 6, 2006.