Medical malpractice cases are “battles of the experts.” Both sides present expert medical testimony to the jury on whether the defendant health care providers were negligent and, if so, what harm resulted. It is difficult enough to get an honest credible medical expert to testify in court that a colleague committed malpractice but in the last few years medical associations and individual physicians have filed civil law suits and complaints with regulatory bodies against doctors who testify for patients in medical negligence claims. These are blatant attempts to intimidate honest doctors from testifying in these cases – and if there is no expert for the patient there is no case!

As an example, Doctor Gary Lustgarten, a board certified neurosurgeon practicing in Florida, testified in a pretrial deposition that the care of a patient by two North Carolina neurosurgeons was below the standard of care, and that based upon the facts of the case he had difficulty believing the accuracy of one of the entries in the medical record made by one of the defendant neurosurgeons. An unidentified complaint against Dr. Lustgarten was filed with the North Carolina Medical Board which charged Dr. Lustgarten had misrepresented the standard of care and testified without evidence that one of the doctors falsified the medical record to protect his partner. The Board, presumably presided over by other North Carolina doctors, agreed and found Dr. Lustgarten had misrepresented the applicable standards of care and had engaged in unprofessional conduct.

Fortunately, the North Carolina Court of Appeals issued a decision on June 6, 2006 finding the evidence did not permit an inference that Dr. Lustgarten made an unfounded statement in offering his opinions supportive of the patient’s case and reversed the Medical Board’s decision.
Did the patient win the battle but lose the war? Will other medical experts be hesitant to offer testimony in support of patient’s medical negligence claims? Only time will tell!

Dan Frith
Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at