When lawyer William C. Hudson learned that State Farm wanted one of his clients to submit to a medical examination by Dr. David W. Buchholz last spring, he protested both the lack of advance notice and the choice of doctor.
Hudson’s client, Melody B. Southard, had been in a car accident with an underinsured motorist and was suing her insurance company in Baltimore City Circuit Court because of persistent headaches that her doctors had linked to the crash.
State Farm had hired Buchholz, an associate professor of neurology at the Johns Hopkins University, to perform an independent medical exam.
But Hudson and other plaintiffs’ lawyers argue that Buchholz is anything but independent, given that he makes nearly $1 million a year testifying for defendants in personal injury cases.
“Plaintiffs reiterate that Dr. Buchholz is not an impartial observer, but an active advocate for the defendant and that the majority of his income derives from giving defendants favorable results,” Michael H. Feldman wrote in opposition to Buchholz examining his client in a 2005 case.
“In general, the vast majority of cases where he testifies, it is his position that the plaintiff did not have any injury or did not have an injury related to the accident in question,” Stephen A. Markey III wrote in the summary of a 2006 deposition of Buchholz.
In a phone interview, Markey estimated there might be eight to 12 physicians in the state who make $500,000 to $1 million a year doing forensic work.
None are more high-profile than Buchholz, who has written a popular book on headaches and appeared on the 700 Club, Larry King Live, Good Morning America and NPR (see accompanying story).
Buchholz, reached by phone Tuesday at his practice in Lutherville, said he was “hesitant” to comment for this story without having prior review of it.
Buchholz formerly served as director of the Neurological Consultation Clinic at Hopkins and has published more than 150 scientific papers. Attorneys who have hired Buchholz describe him as a diligent expert who carefully reviews hundreds of pages of medical records and has a photographic memory.
He maintains a private practice at Hopkins’ Green Spring Station location. But in trial testimony last year, Buchholz said that “between 70 and 85 percent” of his practice income annually comes from personal injury independent medical exams, or “forensic work,” and that 95 percent of that work is for the defense.
Under Maryland law, physicians are disqualified from testifying in medical malpractice cases if more than 20 percent of their income is derived from personal injury testimony. They may still testify in other personal injury cases, such as motor torts.
The Hopkins media relations staff did not respond to a request for comment about Buchholz’s litigation work.
Bel Air lawyer Dennis F. O’Brien has worked opposite Buchholz in the past and is also a spokesman for the Maryland Association for Justice, a plaintiffs’ attorneys group. In that capacity he released the following statement:
“We’re interested in justice and truth in the courtroom. We’d be opposed to anyone acting as a professional witness to the extent that someone like Dr. Buchholz does.”
Riverdale plaintiffs’ attorney Eric F. Rosenberg, who said he called The Daily Record after speaking with Buchholz on Wednesday, disagreed with that characterization. He said he had asked Buchholz to review cases for about five to seven of his clients and called him to testify in one of those cases.
“I’ve had cases he’s turned down,” Rosenberg said. “A professional witness will take any case. He will not.”
According to trial testimony and depositions, Buchholz has testified in hundreds of cases since 1983. During a major carbon monoxide case last year filed by restaurant workers against the owners and operators of the Pier 5 hotel, Buchholz testified that his income from forensic work climbed from $743,000 in 2006 to $885,000 in 2007 to $928,000 in 2008. In previous testimony, he has stated that he made upwards of $500,000 every year from 1999 to 2004.
Over the phone, Buchholz said he could not offer any more recent figures offhand, but in depositions he has estimated his 2009 forensic income to be similar to 2008’s.
Rosenberg said there were other local physicians making as much or more than Buchholz on IMEs. The only difference, he said, is “Buchholz doesn’t lie about his income.”
Paul D. Bekman, former president of the Maryland Trial Lawyers Association, said Buchholz’s $725-per-hour fee is not unusual for an expert in a medical specialty like neurology. He said plaintiff’s attorneys bring up Buchholz’s litigation income at trial to try to paint him as a “hired gun,” but that tactic backfires with some juries.
“Sometimes they think, ‘If he’s getting that much money, he must be really good,’” said Bekman, of Salsbury Clements Bekman Marder & Adkins LLC.
Local defense attorney Robert L. Ferguson Jr.’s firm, Ferguson, Schetelich & Ballew P.A., had hired Buchholz at least a dozen times as of 2005, according to a deposition taken that year. In an interview last week, Ferguson said the doctor has a rare mix of medical expertise and charisma.
“He is an expert on the subject of migraine headaches,” Ferguson said. “I’ve had him testify in brain injury cases and the jury was fascinated by him,” Ferguson said. “I think they believed everything he said — at least judging by the verdicts.”
Local defense attorney Mark T. Mixter faced Buchholz while acting as a plaintiff’s attorney in a 2001 case in which yacht owner Frederick Shaffer Higginbotham III unsuccessfully sued several parties for injuries he said he suffered when a swim ladder on his boat broke under his weight.
Mixter, who also has hired Buchholz on several occasions, had nothing but praise for the doctor’s work.
“Obviously I consider him to be extremely well-credentialed,” he said. “He’s extremely knowledgeable, extremely thorough, he presents well, he’s persuasive. He makes a very good expert witness.”
Mixter added that area plaintiffs’ attorneys had their own expert medical witnesses who made more money on litigation work than Buchholz. When asked to name some of those experts, he declined.
“I’ll leave that up to you,” he said. “But I will suggest that plaintiffs’ experts are utilized much more frequently than defense experts.”
Several attorneys interviewed for this story mentioned Washington, D.C., orthopedic surgeon Robert O. Gordon as an expert medical witness whose income rivals that of Buchholz, though Gordon also does much of his work for defense firms.
Bekman named Baltimore orthopedic surgeon Edward R. Cohen and Towson psychiatrist Michael L. Spodak as frequent experts. According to a Maryland IME directory website, Cohen has performed about 1,000 IMEs in his career, while Bowie spine specialist Segun T. Dawodu has performed about 1,500 and Owings Mills orthopedic surgeon Stanley M. Friedler — in 40 years of practice — has performed “thousands.”
O’Brien said Friedler’s work was fairly evenly split between plaintiffs and defendants, Cohen and Spodak mostly did defense work and he was not familiar with Dawodu.
J. Mark Coulson of Miles & Stockbridge PC, the president of Maryland Defense Counsel Inc., said a few doctors get a lot of IME work for one simple reason: a good expert medical witness is hard to find.
“Not every physician is willing to become involved in the legal process because it’s contentious and typically unpleasant,” Coulson said. “So when either side finds someone willing to participate in the process who is well-trained and presents well in court, those people are in demand by both sides.”
While Buchholz’s testimony indicates that almost all of his work has been for the defense, there are exceptions. Besides Rosenberg, three other lawyers also called The Daily Record last week after Buchholz contacted them about this story.
Gilbert F. Shelsby Jr., of Wilmington, Del., said he had used Buchholz for both plaintiffs’ work and defense work. When asked why more plaintiffs’ attorneys didn’t hire Buchholz, Shelsby said, “I have no idea. Frankly, if they were smarter, that’s what they’d do.”
Shelsby also said that some plaintiffs’ attorneys might not like Buchholz because he meticulously reviews their clients’ medical records and often finds discrepancies between them and their clients’ testimony.
A ‘medical detective’
But plaintiffs’ attorneys have argued that Buchholz’s testimony strayed from clinical opinions of their client’s symptoms to inappropriate supposition about their client’s truthfulness.
Plaintiffs’ lawyers have categorized Buchholz’s IME style as “cross-examination.”
“He fancies himself as something of a medical detective,” O’Brien said.
In 2000, the Maryland Court of Special Appeals called for a new trial in the case of Teresa Anne Beck v. Gary E. Bennett, et al. based on testimony Buchholz gave about Beck.
“My impression is that she had selective forgetfulness in that she was having difficulty providing history that might work against this claim and she was readily available to provide history that would support this claim,” Buchholz testified, according to the Court of Special Appeals’ opinion.
The appellate court said the trial judge erred in allowing Buchholz to testify about Beck’s credibility because it was outside of his realm as a medical expert.
In Tuesday’s phone interview, Buchholz stood by his testimony in that case, saying that Beck had not been forthcoming about a pre-existing condition.
“She claimed to have not had a host of problems that were clearly documented in her records,” he said.
Buchholz has made similar assessments of plaintiffs in more recent cases. When Markey deposed him in a 2006 lawsuit, Buchholz said Markey’s plaintiff, Charles Leo, had a “cautious response style” and “seemed hesitant” to answer his questions during the exam.
“You don’t know Mr. Leo and whether he was being cautious or that is just the way he answers questions no matter what, do you?” Markey asked.
Buchholz responded that Leo responded differently to questions from his wife, who was present for the exam.
“You don’t think that has anything to do with the fact that he is very comfortable with his wife and probably not very comfortable with you?” Markey asked.
Buchholz told Markey that may have been an “element, if not the major part” of Leo’s response style, but he still found it noteworthy.
In last year’s carbon monoxide poisoning trial, Buchholz questioned the validity of the responses the plaintiffs gave to another doctor’s questionnaire, because it was titled “Carbon Monoxide Symptom Questionnaire.”
“My opinion is that it is an invitation to report symptoms,” Buchholz testified.
The opposing lawyer, William H. “Billy” Murphy Jr., objected on the grounds that that was “not even a proper medical opinion.”
Judge Audrey J.S. Carrion sustained the objection and struck Buchholz’s testimony from the record.
Hudson, the attorney representing Southard in her case against State Farm, appears to want to shield his client from that type of non-medical opinion when he insisted on a list of conditions for Buchholz’s IME.
But his insistence on ground rules might cost him the case. Based in part on Southard’s refusal to submit to Buchholz’s IME without them, State Farm filed a motion for summary judgment.
Hudson said he could not comment on the case because that motion, and several others, are pending. However, in an Aug. 12 memorandum opposing State Farm’s summary judgment motion, he insisted that if Buchholz were the one examining his client, the exam would have to be recorded, it would have to be limited to her current symptoms and condition, and trial testimony from Buchholz could not include any opinions about Southard’s credibility.
“[Southard] simply objected to the physician selected by State Farm,” Hudson wrote in the memo, “and insisted that if State Farm would not use a more independent and objective examiner, the examination be performed under reasonable terms and conditions.”