A notable victory for expert testimony

RALEIGH -- At long last, cooler heads have prevailed. This week, as a news story reported, the North Carolina Court of Appeals burst the state Medical Board's bubble of illusion surrounding its foray into the realm of policing the testimony of opinion witnesses who stand up for patients against doctors in our courts.

No, a unanimous Court of Appeals panel said, you may not suspend the license of a doctor who, based upon "substantial evidence," dared to question the white wall of silence around questionable medical care causing harm to patients.

One and a half centuries ago, the legislature established the N.C. Medical Board with a simple directive: to regulate the practice of medicine and surgery for the benefit of the people of North Carolina. How did it get into the business of monitoring testimony in malpractice cases?

In 2002, the Medical Board began proceedings to revoke the license of Dr. Gary Lustgarten, a Florida neurosurgeon who had never practiced in North Carolina, had allowed his license to lapse and had declared to the board that he never intended to treat patients in North Carolina. His sin? Testimony supporting a patient suing a North Carolina doctor.

After the trial, that defendant doctor complained to the Medical Board about the testimony. For what they decided was testimony without basis and contrary to the evidence, the board members first revoked Dr. Lustgarten's license, an action which a Superior Court judge overturned. On the second try, the board suspended Dr. Lustgarten's license for one year.

No problem, you might say, because he didn't want to practice in North Carolina anyway. Not so, for the ripples from this discipline were set to wash over into Lustgarten's Florida license and threaten his standing at the American Board of Neurosurgery, the professional board for certification of neurosurgeons.

This approach is the new defense in medical malpractice cases -- threaten the experts who speak out with their very livelihood, and they will stop testifying against other doctors.

Never mind if the truth is hidden.

The Court of Appeals put a stop to this process, and found that there was in fact a "good faith basis" in the medical evidence for Lustgarten's testimony and that "no other evidence in the record supported the Board's decision."

It has taken four years for the board to reach this point. This case has consumed significant Medical Board time and scarce resources -- taxpayer money, investigator time, attorney time and board time -- for two hearings at the Medical Board, two hearings in Superior Court and one appeal. This has been Litigation with a capital "L." You would think the board had no other demands for the available budget and staff to protect North Carolina's people from harm.

The Medical Board has one more choice -- whether to seek review in the Supreme Court -- and a chance to prove to the people that it will get out of the witness policing business and back into the safety business. The public should watch carefully for the board's choice. It will tell us how the board members view their mission. Are they protecting doctors, or are they protecting the people?

(Elizabeth Kuniholm, an attorney practicing in Raleigh, represents clients in medical malpractice cases. She has no involvement in the Lustgarten case.)