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Neurosurgeon testifying for plaintiff in medical malpractice case did not commit unprofessional conduct, North Carolina appellate court rules

The North Carolina Court of Appeals has ruled that the North Carolina Medical Board did not have grounds to suspend the license of a physician who testified as an expert witness for plaintiffs in a medical malpractice case against two North Carolina physicians. In a unanimous decision dated June 6, 2006, the court of appeals ordered the trial court to dismiss all disciplinary actions the medical board had filed against Dr. Gary J. Lustgarten, a board certified neurosurgeon from Miami, Florida.

Dr. Lustgarten, the first doctor sanctioned in North Carolina in connection with testifying as an expert witness in a medical malpractice case, had testified in a 1998 case that the two North Carolina neurosurgeons had been negligent for at least four separate reasons. On cross-examination, Dr. Lustgarten also questioned certain testimony given by one of the defendant doctors. Following a hearing in 2002, the North Carolina Medical Board ruled all of Dr. Lustgarten’s testimony constituted unprofessional conduct and revoked his North Carolina license. The Wake County superior court reversed the medical board with regard to Dr. Lustgarten’s testimony concerning negligence but upheld its finding of unprofessional conduct with regard to the testimony concerning the defendant doctor’s credibility. The court of appeals, however, completely vindicated Dr. Lustgarten and ordered that all charges against him be dismissed.

In an interview with the Greensboro News & Record, Dr. Lustgarten indicated that he believed the medical board’s actions were an attempt to intimidate him and others from testifying on behalf of patients and against fellow physicians. Despite the charges, Dr. Lustgarten has continued to testify on behalf of plaintiffs in other cases. He is considering possible legal action against the medical board. A representative of the medical board said that the board has not decided whether it will appeal the decision.

Dr. Lustgarten’s case is not the only one of this sort. At present, similar sanctions against two doctors are being reviewed by appellate courts in both Texas and Florida. Both of those doctors are represented by John Vail at the Washington based Center for Constitutional Litigation. Vail indicated that the efforts at intimidation are working as a number of physicians have told him they have decided against testifying because of the threat of sanctions and long legal battles. When physicians decide not to testify against their fellow doctors, many victims of medical malpractice suffer additionally because of the inability to press legitimate claims.

Source: ATLA Law News Digest, Greensboro New & Record