Dr. John Fullerton is a physician and medical malpractice expert witness. He is licensed to practice in Florida and California, but he lives and practices primarily in California. He is not a member of the Florida Medical Association ("FMA") He testified in Florida in a medical Malpractice case brought against Drs. Jonathan B. Wrach, Pravinchandra Zala and Joseph O. Krebs. After a judgment in their favor, the doctors filed a complaint with the FMA asserting that Dr. Fullerton's opinion testimony fell below reasonable professional standards. and was made for the sole purpose of propagating a frivolous lawsuit for financial gain. Dr. Fullerton then filed suit against the three doctors and the FMA. He alleged the statements in their complaint were false and were submitted for processing by the FMA's Expert Witness Committee of its Council on Ethical and Judicial Affairs, which he alleged was organized for the purpose of "intimidating, hindering , and deterring persons, including Plaintiff Fullerton , from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice." He claimed to have suffered damages and irreparable harm to his reputation. The trial court granted the defendants' motion for summary judgment on the basis that the Florida peer review statute and the Health Care Quality Improvement Act of 1986 ("HCQIA") barred Fullerton's claims in the absence of proof of intentional fraud.
A Florida Appellate Court reversed the trial court. In Dr. John Fullerton, v The Florida Medical Association, Inc. et al., _____So. 2d ______ (Fla. App. 2006). The Court held,
In our judgment, because neither Florida's peer-review statutes nor the HCQIA clearly and unambiguously expresses the legislative intent that such testimony should be scrutinized by peer review, we conclude the statues provide no immunity to the defendants.
The Court held that both the state and federal statute were intended to provide immunity for the peer review of physicians engaged in the rendering of professional services to a patient.
It appears from our examination of the above statutes that the term professional review action, as it relates to a formal decision of a review body to take or not take action, encompasses the review of the professional conduct of a physician that might affect his or her patient's health, with the result that his or her right to clinical privileges or membership in a professional society could be impacted. Nothing in the provision of the above statute, however, expressly or reasonably implies the professional body is empowered to review the quality of a physician's testimony in a medical-malpractice proceeding.
The Court acknowledged that its opinion was contrary to that of the U.S. Seventh Circuit Court of Appeals. See Austin v. American Association of Neurological Surgeons, 253 F. 3d 967 (7th Cir. 2001), with which it specifically disagreed. The court further distinguished Austin, noting that unlike in Austin, Dr. Fullerton was not a member of the FMA and that the FMA had "no cause under the circumstances to subject Dr. Fullerton to its discipline."
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