by Arkansas Business staff on Monday, Dec. 4, 1995 12:00 am
For years an unofficial code of silence has discouraged Arkansas doctors from offering expert testimony in-state on behalf of plaintiffs in malpractice cases.
This unwritten and generally unspoken law suddenly assumed a more concrete and visible form on Nov. 16 at the University of Arkansas for Medical Sciences in Little Rock.
Less than 24 hours after a settlement was reached in a Pulaski County court case in which a UAMS psychiatrist offered damaging testimony against a physician in a malpractice suit, the chief of his department announced he did not want faculty testifying against other Arkansas psychiatrists.
St. Paul Fire and Marine Insurance Co., the malpractice insurance carrier that was forced to pay a settlement in the case, also happens to insure UAMS physicians. Malpractice experts say insurers like St. Paul stand a better chance of winning cases when out-of-state experts are used by plaintiffs.
The swift series of events leading to the policy unfolded like this:
At a regular meeting of the UAMS Department of Psychiatry, Chairman Dr. Fred Guggenheim issued the policy against in-state testimony. This came after Dr. Leslie Smith of UAMS testified for the plaintiff in the case.
The meeting's agenda listed a single item under "Other business": "Department policy on testifying against other Arkansas psychiatrists." Several doctors and staff members present at the meeting said Guggenheim told the assembled group he had recently fielded a telephone call from Kemal Kutait, the lawyer in charge of risk management for Medical College Physicians Group (MCPG), the private practice arm of UAMS.
Kutait described to Guggenheim that in a recent malpractice case a UAMS psychiatrist had given expert testimony for the plaintiff against another Arkansas psychiatrist. According to several people present at the meeting, Guggenheim was obviously displeased and said he did not want this to happen again.
He commented that Arkansas was a small state and giving expert testimony against other local physicians could hurt the department. While he had no problem with faculty testifying out of state, Guggenheim said doctors who wanted to testify against another Arkansas doctor needed to speak with him about it first.
One doctor present at the meeting, who asked that his name not be used, said, "I felt strongly warned." His sentiments were echoed in other first-hand descriptions of Guggenheim's remarks.
Policy or Not?
Asked whether he has a departmental policy on his faculty testifying against other Arkansas psychiatrists, Guggenheim said, "No, it's certainly not forbidden, but that's not the issue. For issues of [UAMS] policy you need to talk to [Dr.] Charles Smith," who is executive associate dean of the College of Medicine.
Pressed about his remarks at the Nov. 16 faculty meeting, Guggenheim said: "It's not news. First of all it wouldn't end up being controversial. But the other issue is it's not news what happens at a faculty meeting."
However, he adds that expert testimony "gets complicated in a small state" because "we're trying to be friends, trying to be neighborly."
Charles Smith said UAMS has no official policy against expert testimony.
Guggenheim didn't explain why, if his department has no policy other than the general UAMS policy, his remarks at the faculty meeting came under the heading "Department policy on testifying against other Arkansas psychiatrists."
American Medical Association guidelines state that "as a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights."
The Testimony in Question
Dr. Les Smith is employed by the Arkansas Research and Training Institute, a section of the state's Division of Mental Health, and is assigned to develop and implement a dual diagnosis program for the state mental health system. He is also a research psychiatrist at UAMS.
Shortly before the Pulaski County trial, Smith was asked by Robert A. Ginnaven III of the Boswell Tucker Brewster & Hicks law firm in Bryant if he would offer expert testimony regarding the medical care of Ginnaven's client, Steven H. Curtis.
Ginnaven filed a malpractice suit on behalf of Curtis against Living Hope Institute Inc. of Little Rock and Dr. Robert S. Bryles. Curtis entered Living Hope with problems resulting from drug abuse, but he was diagnosed there as suffering from bipolar disorder, or manic depression. Lithium and Tegretol were the medications used to treat his condition. Ginnaven contended that Curtis had been misdiagnosed from the start as having a psychological condition when in fact his medical problems arose from drug abuse.
After studying the hospital records, Les Smith agreed to offer an opinion.
"It was fairly obvious that there was medication mismanagement for six months with numerous chances to rethink the case and change management," Les Smith says. "Instead, at each opportunity the doctor simply increased or added more medications."
The trial was scheduled for the week of Nov. 13 in Pulaski County Circuit Court. Smith testified Nov. 14 that Bryles had operated "below the standard of care." On Nov. 15, a settlement was reached during the lunch break.
Ginnaven made an earlier offer of settlement to both defendants through their attorneys, which was rejected. Ginnaven says he renewed his offer just before the lunch break on Nov. 15 after he perceived the defense's case had been damaged by, among other things, the strength of Smith's testimony under cross-examination.
The trial was over by 2 p.m. Nov. 15. By noon the following day the item about expert testimony against Arkansas psychiatrists was on the faculty meeting agenda.
Guggenheim admits he received a phone call from Kutait, the MCPG risk management lawyer, sometime between the time the settlement was reached on Nov. 15 and the faculty meeting the next day. He also acknowledges that Kutait informed him of Smith's testimony in that phone call but says he does not know the source of Kutait's information.
Ginnaven says that when he was told of the meeting at which Guggenheim had admonished his faculty, he phoned Kutait, who told him that while MCPG does not have a policy against its doctors testifying against other Arkansas physicians, it was its "preference" that they not do so. According to Ginnaven, Kutait said, "It's bad for business. We get our referrals from the private sector."
Ginnaven says Kutait would not reveal the source of his information, but denied that it had been either of the defense lawyers in the Curtis case.
St. Paul and the Friday Firm
Tonia P. Jones of the Friday Eldredge & Clark law firm in Little Rock was the attorney for Living Hope Institute. St. Paul, the largest malpractice insurer in Arkansas, is one of the firm's bigger clients.
Although Living Hope was granted a directed verdict on its behalf, leaving Bryles as the sole defendant in the case, Jones remained in the courtroom until the end of the proceedings.
Jones denies calling Kutait but says he is "well-known to those people here who do medical malpractice work." Kutait used to be an insurance adjuster for Medical Protective Group, formerly one of the two major malpractice insurers in Arkansas.
William H. "Buddy" Sutton, managing partner at the Friday firm, says he did not contact Kutait, nor is he even aware of the Living Hope Institute case.
Stuart P. Miller of the Mitchell Williams Selig Gates & Woodyard law firm in Little Rock was Bryles' attorney. He, too, denies contacting Kutait. He would not say whether he had spoken to anyone else about the damaging expert testimony given by Smith.
Kutait did not return calls from Arkansas Business.
Big Business and Patient Welfare
Dr. Bob Gale, a board-certified forensic psychiatrist and assistant director for clinical services at the Arkansas Division of Mental Health Services, says Guggenheim's comments at the faculty meeting were inappropriate.
"All physicians have an ethical duty to expose substandard care," he says. "The legal arena is an appropriate forum for the pursuit of the truth, particularly when there is disagreement about the facts of a case.
"It is highly inappropriate to discourage knowledgeable physician involvement in this process."
George Wise, a lawyer with the Boswell firm, says it's generally very difficult to bring a malpractice suit at all, even when the facts suggest a patient has received substandard care. And it's even harder when lawyers must rely on out-of-state expert witnesses.
"First, out-of-state experts are less credible to a jury than a local doctor," he says. "Second, it's significantly more expensive — at least double and maybe triple — to hire an out-of-state expert, and we need to keep costs down.
"That's one reason big insurance companies like St. Paul win their cases three-quarters of the time."
"It's very unusual to have a local expert willing to offer testimony in a malpractice case," he says.
Having a local expert like Les Smith testifying for the plaintiff can make the difference between winning and losing a malpractice suit, but with the "Serpico" onus that attaches to doctors who break the code of silence, physicians are under great pressure to look the other way.
All this could not be farther from Smith's own immediate concerns.
"I think all this is rather odd," he says. "In New York people testify against other doctors all the time.
"Everyone says doctors are supposed to police themselves. I thought I did the right thing, and now it seems I'm in trouble for it."
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