Sunday, September 14, 2008

American College of Surgeons protects bad doctors

Shame on the American College of Surgeons for protecting bad doctors by intimidating legitimate expert medical testimony.

(No wonder many injured plaintiffs' subsequent treating surgeons are reluctant to testify against defendant surgeons. This attitude neither advances the mission of the ACS nor protects surgical patients)

MR. MILES J.ZAREMSKI is a health care attorney who has written and lectured on health care law for more than 30 years; he practices in Northbrook, Illinois reported as follows in Internal Medicine News (April 15, 2008):

Peer review, which plays an important role in reviewing medical care in hospital settings, sometimes is abused and warped to a degree never envisioned by legislators.

An example now moving through the Illinois state legal systems warrants attention. Joseph Kamelgard, M.D. v. the American College of Surgeons (Circuit Court of Cook County, Ill.).

In the Kamelgard case, Dr. Kamelgard, a well-regarded bariatric surgeon from New Jersey, testified for the first time as a medical expert in a malpractice lawsuit in federal court in Brooklyn, New York. Dr. Kamelgard testified on behalf of the plaintiff.

The plaintiff, a New York resident, received medical care at a Staten Island hospital. The defendant was a physician who, according to court records, had been named previously in professional liability cases. The jury decided in favor of the defendant physician.

The defendant physician never challenged Dr. Kamelgard's testimony.

But the defendant physician later filed a complaint with the American College of Surgeons (ACS), accusing Dr. Kamelgard of allegedly testifying falsely regarding relevant standards of care. The ACS maintains its headquarters in Chicago, Illinois.

The ACS decided to charge Dr. Kamelgard with violating its rules. However, shortly before a scheduled hearing, lawyers intervened on Dr. Kamelgard's behalf. The ACS later dropped the case. No explanation was ever given.

Despite Dr. Kamelgard's requests, the ACS refused to provide him with a copy of the complaint against him, the identity of his accuser, or even the names of the three members of the ACS deemed qualified as bariatric surgeons to review the complaint for the college.

Dr. Kamelgard filed a petition seeking the identities of these three members. The ACS asserted that what was being sought was protected by Illinois' state Medical Studies Act (MSA), the state peer review statute.

According to court filings, the ACS admitted that no practice of medicine occurred in Illinois, that testifying equates to the practice of medicine, and that by testifying there Dr. Kamelgard practiced medicine in New York (though New York's statute defining medical practice does not include testifying). But even though Dr. Kamelgard was not licensed in Illinois and had no connection to the state except belonging to the ACS head-quartered there, the ACS wrote that any physician who becomes a member agrees to be bound by Illinois law.

The ACS, which has over 74,000 members world-wide, suggests by this case that Illinois law governs its conduct.

The Kamelgard case, is pending in Illinois but now on appeal. It remains to be seen whether an Illinois court will opine on how the ACS believes the Illinois statute should be used.

Granted, some physicians don't belong in a courtroom offering expert testimony. However, the Kamelgard case illustrates the swords that professional societies may think they can wield in order to prevent physicians from offering legitimate expert medical testimony. After all, giving expert opinion is not rendering patient care, and thus is not generally considered the practice of medicine under state law.

Thanks for the great article, Miles Zaremski, J.D.


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