Vignettes with a Message

May 30, 2008

Correspondence between A. Bernard Ackerman, MD and Robert M. Golub, Letters Section Editor, JAMA.

Letter from A. Bernard Ackerman, M.D. to Robert M. Golub, M.D., Letters Section Editor of JAMA, May 12, 2008

To the Editor:

In the colloquy (1-3) that followed on the article by Kesselheim and Studdert (4) [Role of Professional Organizations in Regulating Physician Expert Witness Testimony JAMA 2007;298(24):2907-2909], arguments, pro and con, were advanced in regard to oversight by professional organizations of the veracity of medical-expert testimony. Various proposals were offered about how to better ensure that such testimony, whether given by an expert for plaintiffs or for the defense, is scrupulously accurate. Nowhere, however, was mention made of the method employed by TruthfulTestimony.org (TT.org) for achieving that desideratum, namely, putting the spotlight directly on prevaricators by quoting verbatim from transcripts of their testimony given in deposition and at trial, they, in every instance, being invited to respond ad lib in writing to the charge of lying. Nearly always, rather than rebutting the accusations, one by one, the miscreants reply through their attorney, who threaten suit for libel if the piece is published—which then is done post haste. Not once has their been an overt move to litigation.

In the realm medical-legal of dermatology and dermatopathology in which the issue almost always is “a missed melanoma,” there has been considerably less falsification by expert witnesses since TruthfulTestimony.org was founded, it being the successor to the Coalition and Center for Expert Medical Testimony (CCEMT), the longevity of both endeavors combined being five years. Moreover, “hired gun” expert witnesses whose false testimony has been called to attention by TruthfulTestimony.org. are being sought much less avidly by attorneys.

In my view, regular channels of medicine, including professional organizations, and of the law, including judges, will not prove effective in mandating honest medical expert testimony; they have failed abysmally in the past and hold little promises for success in the future. Holding colleagues, themselves, accountable in front of peers for their testimony seems to be much more efficacious.

A. Bernard Ackerman, M.D., Director Emeritus, Ackerman Academy of Dermatopathology, abernard@ameripath.com

ABA/jd

Reference

1) Hartz AJ. Regulating Physician Expert Witness Testimony. JAMA. 2008;299(14):1667-1668.

2) Larriviere D. Regulating Physician Expert Witness Testimony. JAMA. 2008;299(14):1667.

3) Kesselheim AS, Studdert DM. Regulating Physician Expert Witness Testimony—Reply. JAMA. 2008;299(14):1668.

4) Kesselheim AS, Studdert DM. Role of professional organizations in regulating physician expert witness testimony. JAMA. 2007;298(24):2907-2909.

Email from Robert M. Golub, M.D., Letters Section Editor of JAMA, May 19, 2008

Dear Dr. Ackerman:

Thank you for your recent letter to the editor. Unfortunately, because of the many submissions we receive and our space limitations in the Letters section, we are unable to publish your letter in JAMA.

After considering the opinions of our editorial staff, we determined your letter did not receive a high enough priority rating for publication in JAMA. We are able to publish only a small fraction of the letters submitted to us each year, which means that published letters must have an extremely high rating.

We encourage you to contact the corresponding author of the article, although we cannot guarantee a response. We do appreciate you taking time to write to us and thank you for the opportunity to look at your letter.

Sincerely yours,

Robert M. Golub, MD, Letters Section Editor, JAMA

Email from A. Bernard Ackerman, M.D. to Robert M. Golub, M.D.,

Dear Dr. Golub,

I have reflected on your letter to me of May 19 (see attached) regarding my “Letter to the Editor” of May 12 (see attached). These lines to you are not a request for reconsideration of that decision. They are designed to communicate concerns of mine about the process whereby “Letters to the Editor” of JAMA are judged and to seek explication from you about it.

It is my impression that JAMA, both in articles and in “Letters to the Editor,” engages the vexing problem of dishonest medical expert testimony in a manner mostly theoretical. There are pontifications and platitudes, but practically never is there expression of a practical solution to what has become a blot on the escutcheon of our profession. In fact, the letters of Hartz and Larriviere that prompted my Letter are stereotypical, they dealing with failed “solutions” for and hopes unrealistic about lying shamelessly by medical expert witnesses.

TruthfulTestimony.org actually is doing something practical and constructive about bringing to heel prevaricating physicians who lie unabashedly in matters medical-legal. Moreover, the method employed by TruthfulTestimony.org seems to be working; the prevaricators are jittery and some of them have left the arena. Why would not JAMA want to give a hearing to such an endeavor undertaken on behalf of the profession and of individual colleagues injured by miscreants who lie outrageously? Did the reviewer(s) of my Letter take the time to visit TruthfulTestimony.org? If that were done, what would have been encountered is a phenomenon that resulted from thousands of hours of work, not mere “gum beating.”

Kindly favor me with the courtesy of a reply as thoughtful as this letter to you from

A. Bernard Ackerman, M.D., Director Emeritus, Ackerman Academy of Dermatopathology

Email from Robert M. Golub, M.D., to A. Bernard Ackerman, M.D., May 30, 2008

Dear Dr Ackerman,

Thank you very much for your note.

While we sincerely appreciate your interest in and response to the Commentary, JAMA generally only publishes letters to the editor in response to an article that are received within 4 weeks of the publication date. We do not continue discussion by a second round of letters in response to letters. The only exceptions are identification of major factual errors in the article that cannot be adequately addressed by publishing a Correction.

Since the Commentary was published on December 26 2007 and your letter was received on May 12 2008, it was too late for consideration for publication.

Best regards,

Robert Golub

Message:

While the AMA episodically “beats its gums” mouthing hardly intelligible pontifications and platitudes about the problem of dishonest medical expert testimony, TruthfulTestimony.org actually is doing something positive about bringing prevaricating physician expert witnesses to heel. While JAMA episodically publishes articles and Letters to the Editor that deal with failed “solutions” for and hopes pertinent unrealistic to the problem of lying by medical expert witnesses, TruthfulTestimony.org actually is publishing statements patently false of those witnesses, thereby indicting them in front of peers and sending a message to all other physicians who contemplate, for even a nanosecond, giving testimony in a deposition or at trial that is anything other than honest scrupulously. While JAMA rejects the only Letter to the Editor it has ever received about the raison d’être and effectiveness of TruthfulTestimony.org, the latter endeavor continues to serve as the only practical impediment to unabashed dishonest medical expert testimony. The AMA should take careful note of the difference between acting and posturing.

In his letters to me of May 19, 2008 and May 30, 2008, Robert M. Golub, MD, Letters Section Editor of JAMA, gave two very different explanations for the rejection of my Letter to the Editor. On May 19 he wrote that “Unfortunately, because of the many submissions we receive and our space limitations in the Letters section, we are unable to publish your letter in JAMA,” whereas on May 30 he averred that “JAMA generally only publishes letters to the editor in response to an article that are received within 4 weeks of the publication date” and “We do not continue discussion by a second round of letters in response to letters.” If Dr. Golub’s statements conflicting had been made under oath or at trial, they would have qualified for scrutiny on Truthful Testimony.org.

May 27, 2008

"PROFESSIONAL ISSUES: Lawyers' misconduct triggers new liability trials; Two courts found that breaches of courtroom etiquette inappropriately influenced case outcomes.", Amy Lynn Sorrel, AMNews, May 5, 2008.

A pair of recent court rulings has physicians praising the legal system for keeping plaintiff attorneys' inappropriate conduct in check and assuring fairness in the courtroom.

A Michigan appeals court in March found the plaintiff counsel's improper behavior in a medical liability case was pervasive enough to influence the jury and prevent a just hearing. The decision follows a similar one in October 2007 by the Ohio Supreme Court regarding a birth injury lawsuit.

Both courts said the physician defendants were entitled to new trials and admonished the attorneys for deliberate behavior that included misrepresenting medical testimony or making irrelevant comments; harassing the defendants and expert witnesses; and improperly appealing to the juries' sympathies. [...]

Daniel J. Schulte, legal counsel to the Michigan State Medical Society, said decisions like the recent ones in Michigan and Ohio give judges more teeth when enforcing courtroom rules and offer a strong reminder to lawyers and juries.[...]

"There is a limit to what lawyers can do in the courtroom when advocating on behalf of their clients. And juries should be focused on the facts and should make their decision based on the facts in evidence and nothing else," Schulte said.[...]

Judges in Michigan and Ohio said court records for the cases in question were replete with improper remarks made by the plaintiff attorneys.

The Michigan appeals court noted the trial judge "valiantly and repeatedly attempted" to restrain Konheim. "There is a point, however, when an attorney's deliberate misbehavior becomes so repetitive and egregious that it necessarily impacts the jury, notwithstanding the judge's efforts. That point was reached here," the unanimous opinion states.

It also says that Konheim belittled witnesses on the stand and made "irrelevant" and "disparaging" statements that diverted the jury's attention from the case's merits. Konheim is asking the court to reconsider.[...]

The state Supreme Court concluded the excessive verdict was given under the influence of "passion and prejudice" after Fieger "intentionally and repeatedly mischaracterized testimony in an attempt to mislead or confuse the jury." The court also noted that the plaintiff's expert exaggerated the economic damages with no medical basis, which also impacted the jury.

"Both the improper expert testimony and the alleged misconduct functioned to taint more than just the amount of the verdict; indeed, they tainted the jury's finding of liability itself," the opinion states.[...]

Ohio medical defense lawyer Stephen P. Griffin said attorneys have a lot of leeway, but there are some mechanisms to protect against abuse.

If a doctor's counsel anticipates potential misconduct the defense can file pretrial motions to alert the judge, Griffin said. "It's the court's responsibility to see these things enforced, and these decisions put authority back where it should be -- in the judge's hands."

Message:

Attorney Schulte said it well: “[ ] juries should be focused on the facts and should make their decision based on the facts in evidence and nothing else.”

And attorney Griffin said the rest: “It’s the court’s responsibility to see these things enforced, and there decisions put authority back where it should be—in the judge’s hands.”

For too long, attorneys have all too often sought intentionally to obscure, twist, and even alter the facts, and judges have watched passively as all too many attorneys violated a basic code of fairness that they, and they alone, are charged with maintaining. Let all segments of the society, including the professions of law and of medicine, commit themselves resolutely to insuring that the system of justice be administered justly in fashion scrupulous.

May 27, 2008

"Doctors Say ‘I’m Sorry’ Before ‘See You in Court’", Kevin Sack, The New York Times, May 18, 2008.

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But with providers choking on malpractice costs and consumers demanding action against medical errors, a handful of prominent academic medical centers, like Johns Hopkins and Stanford, are trying a disarming approach.

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.

At the University of Michigan Health System, one of the first to experiment with full disclosure, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001, said Richard C. Boothman, the medical center’s chief risk officer.[...]

The Joint Commission, which accredits hospitals, and groups like the American Medical Association and the American Hospital Association have adopted standards encouraging disclosure.

In Michigan, trial lawyers have come to understand that Mr. Boothman will offer prompt and fair compensation for real negligence but will give no quarter in defending doctors when the hospital believes that the care was appropriate.

Message:

Never, ever, has it been proper for a physician not to acknowledge error forthrightly, directly, and unambiguously. Not to do so is dishonest and dishonorable. That it took until the early years of the 21st Century for “full disclosure” to be encouraged by medical schools, medical centers, and organized medicine is itself disturbing. More sobering is that the motivation for it now is largely ulterior, namely, an effort to avert a suit alleging negligence. T.S. Eliot, in Murder in the Cathedral, wrote as follows:

“To do the right thing for the wrong reason

This above all is the greatest treason.”

May 27, 2008

"Editorial: Doctors who say they're sorry", The New York Times, May 22, 2008.

The willingness of doctors at several major medical centers to apologize to patients for harmful errors is a promising step toward improving the quality of a medical system that kills tens of thousands of patients a year inadvertently.[...]

What is needed, many specialists agree, is a system that quickly brings an error to light so that further errors can be headed off and that compensates victims promptly and fairly. Many doctors, unfortunately, have been afraid that admitting and describing their errors would only invite a costly lawsuit.

Now, as described by Kevin Sack in The Times, a handful of prominent academic medical centers have adopted a new policy of promptly disclosing errors, offering earnest apologies and providing fair compensation. It appears to satisfy many patients, reduce legal costs and the litigation burden and, in some instances, helps reduce malpractice premiums.[...]

To encourage greater candor, more than 30 states have enacted laws making apologies for medical errors inadmissible in court. That sounds like a sensible step that should be adopted by other states or become federal law. Such laws could help bring more errors to light. Patients who have been harmed by negligent doctors can still sue for malpractice, using other evidence to make their case.

Admitting errors is only the first step toward reforming the health care system so that far fewer mistakes are made. But reforms can be more effective if doctors are candid about how they went astray. Patients seem far less angry when they receive an honest explanation, an apology and prompt, fair compensation for the harm they have suffered.

Message:

Nearly everything now being written by way of commentary on the recent dramatic change advised by “organized medicine” in regard to physicians who erred in diagnosis or in treatment of patients, i.e., dealing forthrightly and empathically with them, pertains to matters practical, i.e., reducing errors by physicians and reducing lawsuits by patients against physicians. Although those concerns pragmatic surely are worthy of consideration serious, the more overarching issue is intellectual integrity on the part of physicians, the lack of it being what has led all-too-often to “cover up” of mistakes and to prevarication by expert witnesses in actions legal. Why did it take centuries for this “new” policy of simple honesty to be adopted by the medical profession? Thought profound and reflective should be given to that question by those who bear responsibility for the education of medical students, residents, and fellows.

February 20, 2008

"Frivolous Legal Malpractice Lawsuits – What Happens After Tort Reform", Medical Justice News, September 21, 2007.

Opponents of tort reform will often claim that frivolous medical malpractice lawsuits are some sort of ‘myth’. So the story goes they are a fiction created by the insurance industry to justify high malpractice premiums. While the proponents of this viewpoint are certainly correct about the pervasive high cost of malpractice insurance, the fact is that frivolous med-mal lawsuits are all too real. As recent studies in Ohio and Virginia have shown, only one of every five malpractice suits filed against physicians can claim to have any merit.

Message:

The statements just quoted may be true for “med-mal lawsuits” in general, but they are not correct in regard to such suits in dermatopathology. Almost always, a lawsuit in the realm of dermatopathology results from an error in diagnosis, nearly always a misdiagnosis of melanoma as a melanocytic nevus. But having said that, although the lawsuit itself is not usually frivolous, all too often testimony by a medical expert witness is frivolous at best and patently dishonest at worst. The example stereotypical is the charge of causation when after a melanoma had been removed in its entirety clinically and histopathologically (no evidence of melanoma was present at either lateral or deep margins), and biologically (a melanoma did not persist at the local site clinically or by examination of the site by conventional microscopy, only a scar being residual), a metastasis of melanoma became apparent sometime later. It is obvious that by virtue of the information just provided, i.e., the primary melanoma had been removed in toto, the melanoma must have metastasized before the surgical procedure was performed for the primary melanoma. In comes a medical expert witness who asserts that the managing physician was negligent because the margin of excision was not great enough, it was only “conservative,” i.e., 0.5 cm, when it should have been at least 1 cm. Such testimony is worse than frivolous, it is malicious. The metastasis of melanoma occurred before the surgery was undertaken and it mattered not a whit how much normal skin and subcutis was then removed, how “wide and deep” was the excision, or whether or not a sentinel node was sampled by biopsy; the die was cast and nothing could be done to avoid it. The scenario just recorded is all too common in “med-mal lawsuits” in the realm of dermatopathology. TruthfulTestimony.org exists for the purpose of preventing medical expert testimony like that just recorded and ensuring, as the title denotes, TruthfulTestimony.

February 20, 2008

Cheers and Jeers, Integrity in Science Watch, October 9, 2007.

Cheer to Adam Liptak of the New York Times for exposing Mississippi doctor Jay T. Segarra’s paid testimony on both sides of a case involving thousands of fraudulent diagnoses of asbestosis and silicosis by medical screening companies. Liptak reported that while Segarra provided the expert testimony that Texas federal Judge Janis Jack relied on to crack down on the fraud, he also made over $10 million diagnosing the illnesses for these same screening companies.

Message:

Judge Janis Jack is a hero. It was she, by dint of scrupulous reading of the testimony, by penetrating insight, and by extraordinary courage revealed the fraud perpetrated by physicians acting on behalf of “medical screening companies”.

There is a need for many more judges like Judge Jack and for many more journalists like Adam Liptak. If all the parties witness to perjurious medical expert testimony, including the American Medical Association, the State Boards of Medical Examiners, the County Medical Societies, the Medical Specialty Societies, the judges, and the journalists would all act in a manner purposeful to expose patently dishonest medical expert testimony, there will be no need for TruthfulTestimony.org.

January 8, 2008

"Barry Bonds’ doctor in awkward position if called to testify", The Canadian Press, November 30, 2007.

Barry Bonds’ entourage would arrive at BALCO on Saturdays and after hours so that the slugger could have his blood and urine samples collected in peace.

Dr. Arthur Ting was part of a group that arrived at the Bay Area Laboratory Co-Operative’s Burlingame headquarters in November 2001. The doctor that day drew Bonds’ blood, an unusually pedestrian lab technician role for an otherwise prominent orthopedic surgeon to the stars. […]

According to the federal indictment unsealed earlier this month charging Bonds with perjury and obstruction of justice, two BALCO tests Ting helped conduct in 2001 came back positive for steroid use. Those failed tests will be used to bolster the government’s position the Bonds knowingly took steroids, legal experts said. […]

Now, Ting’s expected to be a vital, if reluctant, witness for the government if Bonds goes to trial.

Ting’s lawyer Daniel Alberti confirmed Ting is still Bonds’ doctor, which might put Ting in an awkward position.

Since there is no protection in federal court for doctors testifying against their patients like there is between lawyers and their clients, Ting has little choice but to tell investigators what – if anything – he knows about Bonds’ alleged steroids use.

“The doctor can’t try and protect Bonds,” said Golden Gate University law professor Peter Keane, a former San Francisco public defender. “The prosecutors will treat Ting like any other witness. If he doesn’t tell the truth, he could be prosecuted for perjury; if he doesn’t testify, he could be held in contempt.”

Message:

Golden Gate University law professor, Peter Keane, got it right conceptually when he said that “If [Dr. Ting] doesn’t tell the truth, he could be prosecuted for perjury”, but the sad truth is that practically no matter how intergalactic the lies under oath of a physician as an expert witness or as a defendant, practically never is a charge of perjury lodged let alone a conviction for it rendered. When, exceedingly rarely, such a charge is filed it is for naught; the court denies that the lies, no matter how deliberate and blatant, truly are perjurous. The excuse, pitiful, given in defense of failure to admit that perjury has been committed, is that in the realm of medicine, differences of opinion about subjects manifold are legion and, therefore, the apologists claim that any testimony given, no matter how outrageous, is mere opinion.

When a professor of medical oncology testifies under oath that a patient whose vessels in a section of tissue that houses a primary melanoma are crammed with neoplastic cells of melanoma has “a 98% chance of cure” and “could live forever”, that is not simply opinion, it is perjury. When a professor of pathology and dermatology testifies under oath that a pathologist who recommended complete, but “conservative” reexcision of a suspected melanoma was negligent for using the word “conservative”, even though the melanoma was excised completely and did not persist at the local site, that is not just opinion, it is perjury. And when a professor of dermatology testifies under oath that a patient with a very thin melanoma which persisted thin at the original local site has a grim prognosis by citing as compelling evidence a graph pertinent to metastasis in a book about melanoma coedited by him, it does not constitute mere opinion, but perjury.

It is long past due that our system of jurisprudence honored its own tenets and convicted for perjury all those who lie knowingly and outrageously under oath – including physicians. To do lies makes a mockery of the law and that erodes the underpinnings of a free, democratic society.

December 10, 2007

"Physicians challenge lawyers’ meritless liability suits – and win", Amy Lynn Sorrel, amednews.com, December 10, 2007.

More doctors are discovering they have some recourse through countersuits or other legal tactics to hold lawyers accountable

Physicians say a series of favorable court rulings is turning the tide in their crusade against frivolous medical liability lawsuits.

Three Ohio courts in six months sanctioned plaintiff lawyers for pursuing unsupported claims against three doctors. Judges awarded the physicians their legal expenses. In New Orleans, the 5th U.S. Circuit Court of Appeals upheld a similar award to a Mississippi doctor Nov. 13.

The courts chastised the attorneys for wanton behavior including: suing the wrong doctor; refiling a claim against a physician even though the plaintiff's expert withdrew his testimony the first time around; and having no expert testimony against one doctor yet failing to drop the case.

Message:

A system of jurisprudence worthy of the name must be just. A frivolous lawsuit, medical-legal or otherwise, is unjust. Just as physicians who have performed in a fashion negligent should be held responsible legally for that, so, too, it must be for attorneys who behave in a manner negligent. Sad to say, medical liability insurers do not as a rule bear the costs of fighting conduct frivolous by an attorney and, therefore, a State Medical Society with a Frivolous Lawsuit Committee, such as is the situation in Ohio, must be turned to for doing that. If such recourse is not available, a physician injured by such frivolity should consider taking on the expense of a countersuit himself/herself. Justice must be obtained for those on both sides of the bar!

November 9, 2007

"Attorney General Says Medical Board Can Discipline Physicians who Provide False Expert Witness Testimony", CMA Alert, May 20, 2004.

A physician who knowingly provides false or misleading expert witness testimony can be subject to professional discipline by the California Medical Board, according to an opinion recently issued by the California Attorney General.

CMA in February submitted comments to the attorney general on the issue and the published opinion is consistent with CMA’s analysis of the board’s ability under the law to discipline physicians for unprofessional conduct.

The medical board has been reluctant to discipline physicians who knowingly provide false or misleading expert witness testimony, saying that testifying is not the “practice of medicine” and as a result is not within the board’s purview.

The attorney general took the opposite view, stating that while a physician who provides expert witness testimony may not be sued in civil court on the basis of his or her testimony, “the board may discipline a physician for unprofessional conduct even though the actual misconduct does not constitute the practice of medicine or cause harm to individual patients, as long as the misconduct relates to the physician’s fitness or competence to practice medicine.”

It is unclear whether the opinion will compel the medical board to begin reviewing complaints concerning expert witness testimony.

Message: Despite the opinion, unambiguous, of the Attorney General of California, the California Medical Board continues to insist that testimony by a medical expert in a deposition or at trial does not constitute the “practice of medicine.” Sad to say, the California Board is not alone in holding that position misguided; two-thirds of the States in the Union share that point of view. But none of the State Boards is prepared to state, straightforwardly, what, in fact, such testimony actually is if not the practice of medicine. Some of those Boards offer the pitiful contention that it is mere “opinion”, as if much of the actual practice of medicine, such as diagnosis based on observations morphologic, were something other than opinion.

It is time to stop engaging in charade and tell it “like it is”. The State Boards are composed mostly of political hacks who seek to bear as little responsibility as possible. In a word, they are gutless. How better to evade responsibility in the realm of testimony perjurous by a physician in a matter medical-legal than simply to declare that the prevarications are not the practice of medicine. The shameless cannot be shamed.

October 1, 2007

"Ethics of Spector witness questioned", Peter J. Hong, latimes.com, August 16, 2007.

A key expert in the Phil Spector murder trial was needled on the witness stand Wednesday for being in bed with the defense -- literally.

A prosecutor asked forensic pathologist Michael Baden, who is married to Spector attorney Linda Kenney Baden, during cross-examination if he would end up "sleeping on the couch for several months" if his testimony did not favor the defense's case.

Judge Larry Paul Fidler quickly turned the heated exchange into a light moment by striking the question and wryly noting it "calls for speculation." The courtroom -- including Baden -- erupted in laughter.

But the independence and credibility of forensic scientists remains a crucial battleground in the final days of the trial.

The defense team, which Spector recently declared is now led by Linda Kenney Baden, has pledged to prove through science its client did not fatally shoot actress Lana Clarkson in his Alhambra home on Feb. 3, 2003.

Instead of irrefutable science, however, the defense has been hit by two rulings of misconduct involving famous experts it had expected would impress the jury.

On Tuesday, Fidler decided Spector's attorneys deliberately hid from prosecutors that Baden would unveil a new theory regarding Clarkson's death.

Baden apparently stunned the prosecution when he testified that he believed Clarkson had lived for several minutes after being shot, contrary to the autopsy finding that she died instantly when her spinal cord was severed by a bullet.

The theory could explain how Clarkson's blood got on Spector's jacket.

In May, Fidler held that Henry C. Lee, perhaps the nation's best-known criminalist, withheld from prosecutors a fingernail-sized object he plucked from the crime scene. Lee was to have been the defense's star witness, but with the end of testimony looming, it appeared unlikely he would take the stand.

Baden, the chief medical examiner for the New York State Police who has had his own television show, may have been a fourth-quarter replacement in the role of defense luminary.

Now, "there is a cumulative problem the defense is facing," said Robert Hirschhorn, a Dallas lawyer and jury consultant who has worked with Baden and Lee. "Two big guns for the defense now have what appear to be ethical problems," he said.

Fidler will soon decide whether part of Baden's testimony will be stricken, or if he will instruct the jury to question the credibility of Baden's statements because of the lapse.

Meanwhile, prosecutor Alan Jackson spent much of Wednesday questioning the financial stake Baden and his wife have in Spector's defense.

Baden said he expected to be paid about $110,000 for his work on the trial, which he estimated totaled 30 to 40 days since Clarkson's death.

Jackson asked Baden if, besides his fee, he had "an additional interest in watching your wife succeed in this endeavor."

"No, my only interest is that Mr. Spector gets a fair hearing, based on the information that is available to me," Baden replied.

Message: It is not enough that ethics of a physician serving as an expert witness be questioned; if the behavior violates accepted standards of medicine and of the law, the conduct should not only be decried, but punishment for it should be meted out by the judge.

In this particular case, there is a clear conflict of interest; the pathologist expert witness is the husband of the lead attorney for the defense and, moreover, with her approval, he deems himself worthy of a fee of at least $110,000 “for his work on the trial.” All of this is outrageous, and because both the medical and legal professions have lost their spine, to say nothing of their sense of shame, neither of them will make a peep of protest; only an exceptional journalist, such as Peter Y. Hong, has the temerity to cry “Foul!” Therefore it rests with the judge presiding in this trial, namely, Larry Paul Fidler, to do what is proper, to wit, chastise both lead attorney for the defense and her husband expert witness, and to affix penalties appropriate to both of those deviators.

August 29, 2007

"Doctors try new word: Sorry”, Judith Graham, chicagotribune.com, August 19, 2007.

Not long ago, this encounter would have been almost unthinkable. Medical foul-ups were rarely discussed among physicians and almost never acknowledged to patients. Doctors were too proud, too afraid of malpractice lawsuits, too worried about losing face.

But the culture of secrecy in medicine is beginning to change, as leading patient safety organizations call for fuller disclosure of medical errors and some trend-setting hospitals decide an "honesty is best" policy will improve care.

Advocates say acknowledging medical errors can advance healing by defusing patients' anger and easing physicians' guilt, especially when accompanied by an apology. Some also contend the practice can cut back on malpractice lawsuits and payouts, though with the movement in its infancy it's too soon to know for sure.

Message: One does not have to be a cynic to entertain the possibility that the sudden adoption by hospitals, and through them by physicians, of a policy that always should have been practiced faithfully is motivated by considerations other than ones strictly ethical. Matters financial surely are operative in this new course of action.