January 01, 2014
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Felony prosecution for misleading expert witness testimony

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Expert witness testimony in civil lawsuits, such as those alleging medical malpractice, is necessary so that lay jurors can understand the intricacies of medical care and the applicable standards of care. Errant or fraudulent testimony can lead to unfairness and injustice, and this concern has led to guidelines by a medical societies to ensure the propriety and truthfulness of expert testimony. A limited number of legal cases have also attempted to define the scope of this testimony.

The Daubert trilogy refers to a line of U.S. Supreme Court rulings that established a rule of evidence regarding the admissibility of expert witness testimony in U.S. federal courts. Many state courts have adopted similar guidelines to ensure minimal qualifications of expert witnesses in state courts. Pursuant to the Daubert standard, a party to a legal dispute can raise a motion before or during trial to exclude the presentation of unqualified evidence to the jury.

 

B. Sonny Bal

 

Lawrence H. Brenner

Of the Daubert trilogy, the leading case was that of Daubert v Merrell Dow Pharmaceuticals, a 1993 ruling that clarified the standard for assessing the admissibility of scientific expert testimony, and generally led to improved courtroom evidence. The second key case was General Electric Co. v Joiner, ruling that made it easier for U.S. district court judges to exclude expert testimony when there are gaps between the evidence relied on by an expert and the expert’s conclusion. Finally, in Kumho Tire Co. v Carmichael, the U.S. Supreme Court held that the judge is the gatekeeper in determining the admissibility of all expert testimony, including non-scientific expert testimony.

To this date, a Daubert motion can be used to exclude a designated expert from testifying in a legal dispute.

Examining the expert witness

A key source of information regarding the background and qualifications of the expert witness is testimony of the witness. The legal system is deferential to the expert witness in this regard. During questioning by counsel, the truthfulness of medical expert opinion, which is based on the training and years of experience of the expert, is seldom in doubt. When in doubt, testimony can be tested under cross-examination and refuted by a competing expert opinion. Expert opinions are deemed credible for these reasons, and also because expert witnesses are not a party to lawsuit, should have no conflicts in presenting an opinion and should have no vested interest in the outcome of the litigation.

This article examines the unusual case of Melvyn Flye, MD, a 71-year-old surgeon who was prosecuted by authorities in Arkansas for misleading and untruthful expert testimony in a medical malpractice proceeding.

Flye’s credentials were impressive; he had degrees and training from institutions, such as Yale and Duke, and had practiced at hospitals such as Washington University in St. Louis, Missouri. He was hired frequently as an expert witness by lawyers in Arkansas and Missouri.

In 2010, Flye was hired to testify in Paul Archer v Dr. Jose Padilla. In 2008, Jose Padilla, MD, performed gall bladder surgery on Paul Archer. Complications occurred when Padilla allegedly clipped the wrong duct. After a jury trial, Archer was awarded $400,000 in damages, partly due to the helpful testimony of Flye. “It was a pleasure working with him, we felt like he was a very good expert and we relied on his opinions and obviously he did a good job. The jury went with our case against Padilla and found in the Archer’s favor,” said Frank Bailey, the attorney who represented Archer. Archer died shortly after the trial, but the monetary judgment in his favor was affirmed by the Arkansas Court of Appeals.

After the trial, Arkansas authorities learned that professional disciplinary proceedings had been instituted against Flye by the Missouri Board of Healing Arts (“the board”). Arkansas prosecutors began to investigate Flye’s testimony in the Archer case. During trial, Flye had been questioned about his background and professional status. When asked if he had ever been sued for malpractice, Flye said that he had been sued once. However, Flye had been sued for medical negligence at least twice, the latest case being in 2007. Flye also testified that he was on staff at Barnes-Jewish Hospital without restrictions. However, his surgery privileges at the hospital had been revoked earlier over a concern of his high perioperative complication rate.

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If plaintiff’s counsel had known about this information, Flye probably would not have been hired as a retained expert. Of equal importance, had the defense lawyer known about these facts, Flye’s credibility could have been challenged on the witness stand. Flye had surrendered his medical license to the board in early 2011, presumably to avoid further discipline.

Specific grounds for discipline

An agreement between Flye and the board showed that in early 2009, Washington University School of Medicine suspended Flye’s surgery privileges. In 2010, Barnes-Jewish Hospital revoked Flye’s staff membership and admitting privileges because of concerns about preoperative judgment, surgical case planning and decision-making which resulted in increased risk to patients; repeated failure to request help from senior colleagues when life-threatening complications occurred; failure to provide adequate supervision to residents and fellows; failure to appropriately communicate with attending physicians in order to provide safe transitions of care; requests for vascular surgery fellows to provide postoperative care to Flye’s patients when the patient’s had surgery or complications outside of the scope of fellows training or expertise; and documentation deficiencies, including providing clinical documentation that deviated significantly from the observations of others.

St. Louis Children’s Hospital also revoked Flye’s staff membership and clinical privileges for failure to maintain liability insurance as required by the hospital by-laws and failure to provide notification of the adverse action by Barnes Jewish Hospital. In early 2011, Flye resigned from the medical staff of Washington University during an investigation.

Flye had previously testified in other medical malpractice matters. In 2010 during Stanley v Jain, Flye said that he was on staff with full privileges at all the previously-mentioned facilities, was currently practicing as a surgeon and had never had his privileges revoked, suspended or held in abeyance at any facility at any time.

Likewise, in 2009, Flye testified in Savarine v Gibbs that he was still performing surgery, and that no conditions had ever been placed on his privileges. In fact, Flye had not done surgery since earlier that year. He also testified that he had been sued only once for medical malpractice, which was not true. During his 2009 testimony in the Archer case, Flye said that he had done surgery 2 days earlier and had performed gall bladder surgery about 1 month earlier. In fact, Flye had been suspended from performing any surgery since January 2009 at the Washington University School of Medicine, Barnes-Jewish Hospital, St. Louis Children’s Hospital or the VA.

In 2012, Flye was served with a subpoena, asking him to appear for a closed meeting with the board to discuss disciplinary action taken against his license by Barnes-Jewish Hospital and allegations that he provided false or misleading testimony under oath as an expert witness in medical malpractice cases. Flye called the board, advising that he would not appear, which itself is another cause for disciplinary action.

In 2013, Flye surrendered his medical license to the board, in lieu of further disciplinary proceedings. Whether additional charges for his multiple instances of perjury in state courts outside of the Archer litigation will be forthcoming is not known. Arkansas prosecutors charged him with the crime of perjury, and Flye was released on $40,000 bail.

Analysis of fraudulent testimony

The Flye case raises the question of whether faulty or misleading testimony by a hired medical expert should be considered unethical, unprofessional or negligent, and if so, what state medical boards and/or courts should do. Medical society strictures already provide oversight and professional sanctions for untruthful testimony. The civil litigation system offers a possible remedy to cure defective testimony, but lawsuits against misleading or deceptive expert witnesses are rare. The Daubert line of cases provides considerable discretion to federal judges to oversee, limit and control the quality of expert witness testimony, but Daubert standards may not always help in state court litigation. As it stands, Flye had offered misleading expert testimony about his own background and credentials in multiple state courts during medical malpractice trials. The Arkansas prosecutors went after him only for his testimony in that state; none of the other states in which Flye gave similar testimony had taken any action.

The legal system holds physicians in high regard, and relies on the testimony of physicians to properly adjudicate medical malpractice trials. Most medical malpractice trials are resolved in favor of the defending physician. Courts are also willing to give medical expert witnesses considerable immunity for their testimony. Serving as an expert witness in a legal proceeding is a serious matter.

Licensure sanctions by state medical boards, criminal charges for perjury (as those faced by Flye), and medical society discipline are the mechanisms whereby society can minimize the harmful impact of unscrupulous witnesses on our legal system. Flye was of retirement age when he ran into trouble as an expert, and indeed many older, retired physicians supplement their income by offering expert testimony. However, as the Flye case demonstrates, in modern times, computerized records of proceedings, and ease of communication between information databases can lead to easier identification of errant expert testimony, and result in sanctions by prosecutors and disciplinary bodies.

For more information:
B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner have no relevant financial disclosures.