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Volume 5, April 2005
www.psljournal.com/archives/all/expertsed.cfm
Punishing Experts, or Protecting the Courts?
Louise Andrew, M.D., J.D.*
* President, Coalition and Center for Ethical Medical Testimony
We believe that there are several misstatements and factual reporting errors in
the article Punishing Medical Experts for Unethical Testimony: A Step in the
Right Direction or a Step too Far?, by David Resnik.1 To begin, the article seems
to have taken news accounts and plaintiff documents as source material in
factual analysis of the Lustgarten case. However, the transcripts of hearings and
depositions in this case are publicly available from the NCMB, and have been
analyzed on the website of the Coalition and Center for Ethical Medical
Testimony,2 correcting some of the misinformation promulgated by the press.
The first factual misstatement is that “Lustgarten also speculated that Jaufman
had falsified medical records to cover up his mistakes.” As the record shows, the
speculation made by Lustgarten was that Jaufman had temporized medical
records in order to protect his partner Keranen. (But sworn testimony by
witnesses refuted this speculation by affirming the observation entered by
Jaufman in the medical record.3)
Another example of error is found in the quote, attributed in the press to
Lustgarten's attorney, that "NCMB does not know of any cases in the U.S. where
a board has acted against a physician for unethical conduct related to expert
testimony". That was and is incorrect. In fact, counsel for the NCMB and
Lustgarten's attorney knew of several such cases, as I informed both attorneys
myself of the existence of these cases before the hearing.
I argue that the Court documents were misquoted as well. The article states that
"The Court found that the statute granting the NCMB the authority to discipline
physicians was unconstitutionally vague as applied to Lustgarten's testimony
concerning the standard of care in a medical malpractice case beca