Money & Medicine: Making Malpractice Harder to Prove:
"DOCTORS' groups, insurers and President Bush have vowed to continue their fight in 2004 to pass legislation that caps jury awards in medical malpractice suits. But there is another movement inching forward, and it, too, could have far-reaching consequences for injured patients.

Slowly and quietly, the rules regarding expert witness testimony in medical malpractice cases have been changing: a handful of states have passed legislation in the last two years that generally requires physician experts to work in the same field as a defendant doctor, while professional doctors' groups are setting up committees to review the testimony of their members. "

A medical expert is indispensable to a medical malpractice case. To show negligence, the plaintiff must demonstrate that the "standard of care" has been breached by the doctor in question. And who knows more about that standard than another doctor? Without a medical expert, there is no case.

Rick Del Cueto found this out the hard way. In 1995, he said, his 3-year-old daughter, Cristine, suffered a stroke when the surgeon who was operating to remove a tumor near her optic nerve cut a major artery to her brain and then, unaware of his error, cauterized and packed the area to stop the bleeding. After the operation, Cristine could not speak or walk, and lost all movement on her right side. The doctors assured them that she would get better in a few months, Mr. Del Cueto, 45, an accountant, said. But she didn't, and he and his wife, Lily, 44, who had traveled from their home in Miami to Columbia-Presbyterian Medical Center in Manhattan for the operation, decided to sue. (The Del Cuetos say that Cristine, now 11, still suffers from cognitive and physical disabilities: she drags her right foot when she walks and cannot move her right hand.)

The case against the surgeon took seven years to prepare. Early on, lawyers for the Del Cueto family brought in as an expert witness Dr. Robert W. Rand, a neurosurgeon who was then chairman of the pediatric neuro-oncology department at John Wayne Cancer Institute in Santa Monica, Calif. But less than a month before the trial was scheduled to begin in April, Dr. Rand pulled out of the case. His letter to the family's lawyer, Gary Alan Friedman, said: "I have been informed by the senior neurosurgical society to discontinue expert testimony for plaintiffs or risk membership. Therefore I am withdrawing as your expert."

The Del Cuetos were stunned. "You wind yourself up for this; you get anxiety attacks," Mr. Del Cueto said. "And then to hear that it's called off because some sanctioning body doesn't want him to testify, it was incredibly frustrating." Rather than start over, the family settled out of court for an undisclosed sum, according to Mr. Del Cueto. Dr. Rand did not respond to repeated requests for comment.

Dr. Edgar Housepian, the surgeon named in the suit, denied any wrongdoing. "It's unfortunate the child was hurt," he said. "I didn't consider it malpractice, but on the advice of my attorney I felt it was best to settle the case, and we did."

Doctors have long complained that the courts do not do enough to weed out so-called hired guns, physicians who make a living testifying as expert witnesses. Many doctors who take only occasional cases are tarred with the same brush. In recent years, with "truth in testimony" as their rallying cry, many doctors have become activists for restrictions and closer scrutiny regarding expert witness testimony.

But some people question their motives. "Doctors are so desperate to get relief from malpractice costs that they're willing to chip away at the opportunity to present an expert public opinion," said Arthur L. Caplan, director of the Center for Bioethics at the University of Pennsylvania. "They know this is probably bad public policy. But they want to get away from the high costs."

http://www.nytimes.com/2003/12/21/business/21heal.html?pagewanted=all&position=