Kevin, M.D. - Medical Weblog

Probably wrong forum for that. If he really did provide unethical testimony, she should seek a sanction against the witness in her professional organization and in the witness'home state licensing bureau. If she prevailed, that would discredit the witness from further expert testimony.
 

Well, one doesn't have to be a brain surgeon to know that witnesses are immune from defamation suits as long as the testimony is pertinent to the case.
 

Looks like L David Rutberg's (the neurosurgeon sued) site http://www.theheadachemd.com/ has expired. And he was expelled from the American Association of Neurological Surgeons. That's gotta make a dent in the income stream.
 

The comments so far have focused on punishing the expert witness. The goal of a lawsuit, of course, is to compensate the victim. If this guy provided bad expert testimony, and caused the defendant to have to spend a lot more money on defense, isn't it reasonable that the expert witness should have to provide compensation? You're not going to get that by professional sanctions.

On the other hand, I agree with the outcome here. The alternative (setting witnesses up for lawsuits based on their testimony) is worse than the occasional victim of bad testimony.
 

David:

The goal of the lawsuit is not so simple as that. Sure the plaintiff wants money. Who doesn't? They might want it even when they have no reasonable right to expect it. The lawyer provides the means, and the lawsuit the method.

Of course the lawyer isn't doing that for charity. He expects to be paid, and wants to be paid well. So if the case seems worth his time, then a suit is filed. Any resolution that satisfies his client and that he can live with from a professional ethics standpoint should be acceptable, whether he recommends a settlement if offered or not.

The issue here is not compensation to the plaintiff, which the jury evidently felt was not deserved, but on the honesty and ethics of the plaintiff's expert witness. Just because someone is willing to pay me to say something they want said under oath does not mean I have a right to say it. If I said something was not within the standard of care and it in fact was, then I should be held accountable for the statement I made. And there should be consequences to me for saying something falsely. Everything is not simply acceptable as a matter of "opinion" if it is to be considered expert opinion. And that proviso should give me or any potential expert pause to consider the ramifications of my testimony. It is a court, not a cocktail party.

And as for your remark about the occasional victim of bad testimony, I am sure the prisoners whose death penalty convictions were reversed because of bad testimony might take issue with you.

Expert witness testimony is not sacrosanct. I never should be.
And if you should testify against someone and do them harm, you should be held accountable.
 

The AANS has been on a jihad to discourage expert witness testimony. Dr. Rutberg is board certified (that's the ABNS - not the AANS), has no actions against him, and the lawsuit challenging his referral letter was thrown out of court. I'm not saying that Dr. Rutberg is some kind of saint or might have been wrong or may have been cynically just doing it for the money, but the AANS, the commentors, and Kevin are hardly unbiased as to the truth or falsity of the statements or the desireability of encouraging expert testimony. AND, as you can see, the case was thrown out at the district level and appeals. No doubt Dr. MacGregor now owes legal costs to Dr. Rutberg.
 

Dr. Rutberg testified against me in two cases a couple of years ago (I am a neurosurgeon). I know what he said in my cases, and I also know quite a bit about his testimony in other cases.

Let me assure you all that Dr. Rutberg is the absolute worst sort of plaintiff's stooge imaginable. He stopped practicing clinical neurosurgery years ago, and for years he has made his living as a plaintiff's witness. He never testifies in any other role (admitted in my deposition). He charged almost $20,000 for each case, neither of which went to trial.

He did recently try to reinvent himself as a "Headache specialist" which is pure hooey - neurosurgeons are not trained as headache specialists. (He was an advocate for "Head-On" the topical deodorant style treatment with the annoying late-night commercials).

His expert witness modus operandi is to testify loquaciously about areas of neurosurgery in which he has absolutely no personal experience. He also latches on to any theory the attorney asks him to support.

One of my cases involved a procedure known as an anterior cervical fusion. Dr. Rutberg testified that I had performed the procedure incorrectly. He then admitted that he had never seen or performed that procedure himself. He gave detailed opinions regarding the use of different retractor systems and instrumentation, although he had never actually held these in his own hands.

In a case of another neurosurgeon he testified that her performance of transshenoidal surgery for a pituitary tumor was done negligently, and that radiosurgery should have been considered. At trial he admitted that he had never performed either of these procedures, and that his last contact with a pituitary tumor patient was forty years ago, when he was a resident.

That case went for the plaintiff but was later thrown out on appeal soley becasue the court determined that Dr. Rutberg never should have been allowed to testify as an expert. I know of several other examples.

Dr. Rutberg was later expelled from the AANS for not one but three instances of outrageous testimony that were brought up. At his first hearing he tried to resign from the AANS to avoid the charges, but they proceeded. He was reprimanded twice before being expelled in 2004.

The AANS has a right and an obligation to regulate expert witness testimony. Just because a distinguished grey-haired guy in a nice suit calling himself a neurosurgeon says something doesn't make it true. The AANS has said that Dr. Rutberg is not qualified to be part of its organization, which is absolutely true.

Unfortunately, the ABNS doesn't have that ability for Dr. Rutberg. There is now a recertification process that all members must go through every ten years. In includes the obvious requirement that one demonstrate that he is actually practicing neurosurgery. Dr. Rutberg falls in the the grandfathered class of older neurosurgeons who are exempt (because they are so smart?) Compliance for them is voluntary. Anybody want to bet that Dr. Rutberg will apply to recertify??

Dr. Rutberg is a clown. He is now getting the negative publicity he deserves. He remains free to testify, if any plaintiff attorney is foolish enough to use him.
 

I was wondering what the Appeals Court meant when they said that his income would be impacted by gettting kicked out of the AANS. I thought that was a strange comment, but if all he does is expert witness testimony then it makes sense.
 

I think the rules should be the same as any libel or defamation situation. If someone is expressing an honest (expert) opinion based on some reasonable information, that's one thing, but if they go beyond the bounds of honesty, they should be fried on the stand.
One of the more serious problems is the lack of definition of what an "expert witness" is. At least with this guy, he may have been effectively emasculated as an "expert."
 

Actually, there is a very deliberate and explicit definition of an expert witness. It would be hard for the legal system to exclude Dr. Rutberg given his credentials although it seems relatively easy to discredit his testimony once given. If you read the court opinion, you would see that court testimony has a special exemption for a reason. You may not agree with that reason, but I'm probably safe in assuming that you don't trust the courts much anyway.