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Dr.
Joel Yelland: Saskatoon doctor lied to court regarding child
sexual abuse | British "expert"
doctor exposed as quack | Charles
Smith
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- Dr. Fred Hochberg
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- Expert in
false testimony
- Court issues $20,000 judgment against expert witness
- Neurologist misled
jurors
By Scott Allen, Boston Globe
Staff | November 19, 2004
A Massachusetts General Hospital
neurologist has been ordered to pay more than $20,000 in legal
fees after a judge in Lawence ruled this week that he deliberately
misled a jury in a malpractice case, forcing her to order a new
trial.
The unusual ruling, legal analysts
said, will probably send a warning to expert witnesses who stretch
the truth in medical cases across the country.
Superior Court Judge Diane
M. Kottmyer found that expert witness Dr. Fred Hochberg committed
"fraud on the court" in his defense of a doctor who
did not provide emergency drugs to a stroke victim that might
have reduced the neurological damage she suffered. Hochberg argued
that the patient wasn't a good candidate for the drug, called
t-PA, because she had just finished treatment for breast cancer.
The defense succeeded with
a jury, but Kottmyer ruled that Hochberg knowingly mischaracterized
a major study of t-PA's effectiveness. She said he "deliberately
created the false impression" that he had reviewed research
materials connected with the study that he had never seen. The
judge also disputed Hochberg's claim that he had consulted with
a researcher who helped prepare the t-PA study.
"The judge doesn't just
suggest this guy is a liar; she says it outright," said
David Yas, publisher of Boston-based Lawyer's Weekly, a national
newspaper for lawyers. "This is the type of opinion that
is getting faxed to lawyers not just in Massachusetts, but across
the country."
On Tuesday, Kottmyer ordered
a new trial for the family of Sherry Wojcicki, who was confined
to a wheelchair after the stroke until her death in 2001. The
judge ordered Hochberg to pay her family $17,355 in lawyer's
fees and expenses and to pay another $2,950 to the state for
the cost of mounting a new jury trial. Finally, the judge required
the defendant, Dr. Joan E. Caragher of Anna Jaques Hospital in
Newburyport, to pay Wojcicki's family $68,380 in legal costs,
but suggested that Caragher might recover the money from Hochberg.
Hochberg's attorney, William
J. Dailey Jr., said he was disappointed in Kottmyer's decision.
He said the judge did not question Hochberg's opinion that people
with active cancers shouldn't take t-PA. She just questioned
the evidence that he used to reach it.
"This is an event that
no physician would want to have occur and it's a chilling event
to anyone who provides or is thinking about providing any expert
testimony," said Dailey, who said he would appeal the ruling.
David Gould, the lawyer for
Caragher, also promised to appeal, saying, "I can't stress
how strongly I disagree with the judge's decision."
Lawyers routinely attack the
opposing experts in civil lawsuits, but usually the dispute comes
down to differences of expert opinion, rather than fact.
Michael E. Mone, a former president
of the Massachusetts Bar Association who has practiced civil
law in Boston for more than 30 years, said he had never seen
a similar ruling on the credibility of an expert witness in Massachusetts
or any other state. Normally, he said, lawyers can't find information
that is definitive enough to prove an expert is deliberately
lying.
"What you have is a combination
of a very courageous lawyer . . . and the judge who was very
courageous to do what she did," Mone said.
Officials at the state Board
of Registration in Medicine, who license the state's doctors,
said they don't normally punish doctors for misleading testimony
since it is not technically the practice of medicine. However,
spokesman Russell Aims said the board could punish Hochberg if
it determined that his testimony "undermines public confidence
in the practice of medicine."
Caragher, an emergency room
doctor, prevailed in the original jury verdict last November.
But the Wojcickis's attorney, Marc L. Breakstone, was troubled
by Hochberg's testimony regarding a 1995 study that brought dramatic
change in the care for people who suffer the most common type
of stroke. The study found that t-PA, if given within three hours
of the start of symptoms, can significantly reduce neurological
damage from a stroke by dissolving the clot that caused it.
Hochberg said during testimony
that the study excluded cancer patients, so conclusions about
the benefits of t-PA wouldn't apply to them. Breakstone learned
after the trial that 59 of the 600 patients in the study had
suffered from cancer and Barbara C. Tilley, the biostatistician
in the project, said cancer patients were not excluded.
After a posttrial hearing to
allow Hochberg to explain, Kottmyer ruled that Hochberg had deliberately
given the jury a false impression that his claims were based
on a personal review of the computer files from the study that
provided medical information about each of the study participants.
At the hearing, Hochberg conceded that he had not reviewed the
files but said his claim that cancer victims were left out of
the research was based on a phone conversation with Tilley in
her South Carolina office.
But Kottmyer did not believe
Hochberg, saying in this week's ruling that Tilley had no recollection
of speaking with Hochberg and that Hochberg could only produce
telephone records of a 30-second conversation. Also, the judge
found that on that day, Tilley was travelling in California and
not at her office.
Scott Allen can be reached
by email at allen@globe.com.
© Copyright 2004 The New York Times Company
Doc fined $88G for deceiving
jurors
By Thomas Caywood, Boston
Herald, November 19, 2004
A judge has slapped a prominent Massachusetts
General Hospital neurologist with $88,685 in sanctions for deceiving
jurors as an expert witness in a malpractice case last year.
In
a stunning reprimand that reverberated through legal circles,
Superior Court Justice Diane Kottmyer ruled Dr. Fred Hochberg
``deliberately misled the court and the jury'' and later lied
in a deposition to cover himself.
Kottmyer
ordered Hochberg to cough up $70,770 in attorneys fees, $14,965
in expenses and to reimburse the state $2,950 for providing jurors
for a second trial.
``It's
striking to see a judge call out a witness as sharply as this.
It's something you don't typically see,'' said David Yas, editor
of Massachusetts Lawyers Weekly.
Hochberg,
an associate professor at the Harvard Medical School and a nationally
known neuro-oncology authority, was brought in as an expert witness
by lawyers representing a doctor sued for malpractice in the
death of an Amesbury woman.
Three
months after the jury ruled in favor of that doctor last fall,
a judge ordered a new trial on the grounds that Hochberg's testimony
was false and misleading. Tuesday's ruling stuck Hochberg with
the bill.
``Hopefully
this decision will be a warning to any expert who would come
into our courts and fabricate testimony,'' said Boston lawyer
Marc Breakstone, who represented the plaintiff.
Hochberg
didn't return calls to his office yesterday, but his lawyer,
William Daley, said he was disappointed by the ruling.
``The
medical testimony that Dr. Hochberg gave was accurate,'' Daley
said, adding, ``What the judge is saying is that it's her impression
that Dr. Hochberg suggested to the jury that he had reviewed
data that he in fact had not reviewed.''
Hochberg
was suspended from leading research at MGH from 1996 to 1998
after federal auditors found patients getting wrong doses of
an experimental drug and other problems with his studies.
It's
not clear if Hochberg will now face discipline from the Board
of Registration in Medicine.
``In
the past, the board has not considered expert testimony to be
the practice of medicine,'' board spokesman Russell Aims said.
However,
he added, any conduct that undermines the public's confidence
in the practice of medicine could be grounds for action.
Doctor ordered to pay
more than $20,000 for misleading jury
The Associated Press, Nov
19, 2004
A Massachusetts General Hospital
neurologist has been ordered to pay more than $20,000 after a
judge ruled he misled a jury, forcing her to order a new trial.
Lawrence Superior Court Judge
Diane Kottmyer found that Dr. Fred Hochberg committed a "fraud
on the court" when he testified in defense of a doctor at
Anna Jaques Hospital in Newburyport who didn't provide emergency
drugs to a stroke victim.
The victim's family claimed
the drugs might have reduced the neurological damage she suffered,
but Hochberg testified she wasn't a good candidate for the drug,
called t-PA, because she'd just been treated for breast cancer.
The jury ruled for the defense
last November, but Kottmyer ruled Tuesday that Hochberg "deliberately
created the false impression" he'd reviewed materials connected
with a major study of t-PA's effectiveness, even though he'd
never seen them. She also disputed Hochberg's claim he'd consulted
with a researcher who helped prepare the study.
Kottmyer ordered a new trial
for the family of Sherry Wojcicki, who was confined to a wheelchair
after her stroke. The woman died in 2001, and Kottmyer ordered
Hochberg to pay her family $17,355 in lawyer's fees and expenses
and $2,950 to the state to cover the cost of a new trial.
She also ordered the defendant,
Dr. Joan Caragher, to pay Wojcicki's family $68,380 in legal
costs, but suggested she might recover the money from Hochberg.
Hochberg's attorney, William
J. Dailey Jr., said the ruling was a "chilling event to
anyone who provides or is thinking about providing any expert
testimony."
Dailey said the judge didn't
question Hochberg's opinion that people with active cancers shouldn't
take t-PA, just the evidence he used to reach it.
Caragher's lawyer, David Gould,
said he would appeal.
"I can't stress how strongly
I disagree with the judge's decision," he said.
Kottmyer reviewed the case
after the lawyer for Wojcicki's family, Marc Breakstone, learned
that the study on t-PA didn't exclude cancer patients, as Hochberg
had said during testimony.
During a post-trial hearing,
Hochberg conceded he hadn't reviewed the study, but said his
claim was based on a conversation with the project's biostatistician,
Barbara Tilley. But Tilley didn't recall the conversation and
Kottmyer found that Tilley was out of her office the day Hochberg
claimed he spoke with her.
"The judge doesn't just
suggest this guy is a liar; she says it outright," said
David Yas, publisher of Lawyer's Weekly. "This is the type
of opinion that is getting faxed to lawyers not just in Massachusetts,
but across the country."
Copyright 2004 Worcester Telegram & Gazette Corp.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
