He treated a disabled boy, then testified against the boy’s interests. Was that a conflict?
For more than a decade, Miami pediatric neurologist Michael Duchowny treated Tyler Lampert, whose stroke at birth left him with intractable seizures that required brain surgery to suppress. A Florida program had promised to oversee Tyler’s medical needs for the rest of his life.
Duchowny also kept a parallel gig as a consultant and expert witness, eventually being paid more than $1.1 million to write reports and testify for the very same state-created program that covered Tyler — the Florida Birth-Related Neurological Injury Compensation Association, or NICA.
When Tyler’s parents clashed with NICA administrators over Tyler’s needs, Duchowny was brought in to testify — not on behalf of the young man he had treated, but for the agency seeking to restrict the family’s benefits.
“Dr. Duchowny is paid by NICA to decide these children’s fate. And he never told us that directly. He never made that perfectly clear,” said Celia “CeCe” Lampert, the boy’s mother. “I think it’s a big conflict of interest.”
Florida lawmakers created NICA to protect obstetricians from lawsuits by funneling claims for a particular type of birth injury, brain damage due to oxygen deprivation or spinal damage, to the quasi-government insurer. Parents whose children are accepted into NICA are barred from pursuing lawsuits, which is why many families try to keep their kids out of the program. NICA pledges to provide “medically necessary” and “reasonable” healthcare for the life of every child who is enrolled.
But records show NICA has spent about $18 million since 1989 on lawyers and lobbyists, often in an effort to stave off requests for help from families in the program, like Tyler’s — another reason parents have chafed at their dealings with NICA.
Last spring, the Miami Herald, in partnership with the investigative newsroom ProPublica, reported that NICA’s coffers grew as administrators rejected or impeded parents’ requests for care — everything from in-home nursing and wheelchairs to therapy and medication. NICA has amassed almost $1.7 billion in assets.
Lawmakers responded to the investigative series by immediately overhauling the NICA law: They boosted the one-time parental award from $100,000 to $250,000, and the death benefit from $10,000 to $50,000. They increased benefits for mental health care, home modifications and transportation; added a NICA parent and disability advocate to the program’s board of directors and, for the first time, required the program to prioritize the well-being of children.
Lawmakers will consider additional reforms in a bill filed on Nov. 29 by state Sen. Lauren Book, a Plantation Democrat, when they begin the 2022 legislative session on Jan. 11.
A stroke at birth
Tyler is among NICA’s earliest still-living participants, born in September 1995. His records are contained in a lengthy docket at the Division of Administrative Hearings, where NICA claims are litigated. They show he suffered a stroke at birth that left “very little function” in his right hand, and a pronounced limp in his right leg.
Tyler endured as many as 80 seizures per day before brain surgery in August 1997, when he was 23 months old. The surgery reduced the frequency of Tyler’s seizures, but left the boy with some vision loss.
By adolescence, Tyler had become a tall, handsome youth — 6’2” as a teenager. His appearance and fluency of speech masked his disabilities. His parents skirmished often with NICA, whose leaders believed they were requesting more than their son required.
In internal records obtained by the Herald, both Duchowny and NICA administrators referred to CeCe Lampert as “very overprotective.”
The perpetual tension set the stage for a years-long battle over whether, and how much, NICA should pay the parents for caregiving, something it does for many parents in the program, who must devote themselves to their children to the detriment of their careers, and, sometimes, other children. At one point, NICA administrators hired a private investigator to tail the family.
The Lamperts insisted Tyler’s seizures required them to provide 24-hour oversight of their son. NICA downplayed the severity of Tyler’s condition.
Duchowny was in the middle, and his obligation to Tyler collided with his lucrative relationship with NICA, the Lamperts and their lawyer believed.
“He needed to just be Tyler’s doctor,” CeCe Lampert said of Duchowy. “He didn’t seem to always have Tyler’s best interests at heart.”
In 2014, Duchowny was called as a witness by NICA. He said Tyler didn’t require constant supervision. In a deposition, Duchowny said that, physically, “with respect to all of the NICA patients, he’s as good as it gets.” The doctor was paid $1,400 by NICA to render the opinion.
In a 2015 administrative appeal of NICA’s denial, the Lamperts’ attorney, David Caldevilla of Tampa, wrote: “Dr. Duchowny’s service as NICA’s expert witness or consultant against his own patients is a blatant conflict of interest and constitutes an abuse of the sacred confidential relationship between a doctor and his patient.”
In an email to the Herald, Duchowny noted that he had not treated Tyler in perhaps five years when he testified, and that Tyler’s parents had agreed in advance to allow him to evaluate the boy. “It was only after I provided an opinion that the lawyers attempted to strike my opinion,” Duchowny wrote.
“There was no conflict of interest in the performance of the requested examination of the child.”
Duchowny also pointed out that the case’s administrative law judge, Barbara J. Staros, dismissed the conflict allegation, writing “the evidence supports that Dr. Duchowny was hired to conduct a neurological examination of [the child], as he had done many times in the past, and render an opinion.”
Kenneth Goodman, who founded and directs the University of Miami Miller School of Medicine’s Institute for Bioethics and Health Policy, said that, in general, NICA should avoid asking doctors they’ve paid to testify about their own patients — current or former.
Invoking Humphrey Bogart in “Casablanca,” he said: “Why, of all the gin joints in all the world, did you go to this pediatric neurologist?”
Bearing witness
Duchowny is highly regarded in his field. He was honored as a Champion for Children by Miami-Dade’s Children’s Trust in 2016. He is a professor of neurology at the University of Miami, has published scholarly articles on epilepsy treatment, and keeps a busy schedule seeing patients at Nicklaus Children’s Hospital, where he founded and directs the Epilepsy Program.
Aside from NICA, the doctor is frequently commissioned by physicians as an expert witness in malpractice lawsuits. Duchowny has consistently declined to specify exactly how much he’s earned in that capacity, but when questioned under oath he suggested his compensation likely is in the millions.
The Florida Obstetric and Gynecological Society, an advocacy group, was so concerned about situations like his that it explicitly recommended in 2007 that NICA avoid the use of consulting doctors who double as paid witnesses “in order to prevent a potential conflict of interest.”
NICA’s then-top administrator and board members scarcely took notice.
The society “offered recommendations, not firm mandates,” said NICA Executive Director Kenney Shipley, who has since resigned as part of the agency’s overhaul in the wake of the Herald/ProPublica series.
The program’s interim director, Melissa Jaacks, who took over the program’s administration one month ago, declined to discuss Duchowny’s relationship with NICA, saying she was unfamiliar with the issue, and “my first month at NICA has been focused almost entirely on benefit issues for our families.”
At the time of the obstetrical society’s 2007 report, Duchowny had performed about 390 NICA consultations. He’s since done about 225 more, as of the end of October.
In a harsh audit of NICA by the state Office of Insurance Regulation, an arm of the Florida Cabinet, investigators criticized the program for paying $456,251 to physicians for medical opinions from Jan. 1, 2017, through Dec. 31, 2020 — the scope of the audit — who were never asked to sign contracts.
Of that $456,251 total, $180,200 was paid to Duchowny, records show.
While NICA had relied almost exclusively on a small group of consultants for medical opinions, the program has looked to other neurologists, neonatologists and specialists now and again.
When Tyler Lampert was 8, his parents requested that NICA pay for at-home nurses to care for the boy. Shipley asked a specialist, University of Florida pediatric neurologist Paul Carney, to assess Tyler’s medical needs. In April 2004, Carney reported his findings, but offered no explicit opinion as to whether the boy needed home nursing care. Shipley wasn’t satisfied.
“The major issue remaining, and the major reason for requesting the evaluation, is whether or not Tyler is currently in need, or has ever needed, nursing or professional attendant care,” Shipley wrote back.
She stressed to Carney the legal weight of his medical opinion about Tyler.
“This case will be a case of first impression with the court, which will establish a precedent,” Shipley wrote to the doctor, “and it is critical to establish what level of injury and condition may require nursing care.”
She asked Carney to amend his report on Tyler, and then closed the email with: “I hope you have found Tyler and other patients we have referred interesting, and enjoyable to work with.”
That afternoon, Carney dictated an addendum to the report, stating that “with regard to the need for ongoing daily nursing support, I do not feel that this is necessary at this time as Tyler has shown significant improvements with regard to his neurological status.”
CeCe Lampert was surprised by Carney’s evaluation, writing that doctors had told her “Tyler is badly injured and in need of constant supervision.”
“I have essentially had to abandon my career and any other activities to serve as my son’s full-time caretaker,” she wrote, in a letter she faxed to Duchowny.
Asked whether Shipley’s reminder of the business NICA referred to Carney was meant to influence the doctor, NICA administrators said in a prepared statement: “Ms. Shipley simply offered a closing pleasantry in a letter to a physician with whom NICA works.”
NICA declined to address Lampert’s case, but added that “in general, every doctor working with NICA is ethically bound to provide an accurate assessment of a child’s circumstances, and would likely be insulted if they thought someone was trying to influence their opinion, potentially leading them to not offer their opinion or work with NICA in the future.”
In an interview with the Herald, Carney acknowledged that some doctors will write whatever they are paid to write.
“The term is hired gun,” he said. “I’m not a hired gun.”
“I would not let Kenney Shipley or anybody influence me,” Carney said. He added: “If she’s attempting to influence me, that’s not appropriate. Did she try to? That’s in the eye of the reader. Did it influence me? No.”
A million-dollar question
The Herald reviewed scores of expert reports, depositions and trial transcripts involving Duchowny since the 1980s. Frequently, the records show, he defended doctors accused of medical malpractice in cases where newborns mirror the injuries sustained by NICA claimants.
Between 1989 and the present, NICA paid Duchowny, or a practice group with which he is associated, more than $1.1 million, NICA said. That includes $596,317 for examinations in new claims, $350,713 for depositions and testimony, and $151,517 for estimates on children’s life expectancies.
His evaluations carried considerable weight: If Duchowny reported a child was substantially impaired, both physically and intellectually, a family might have to forgo a lawsuit and accept NICA benefits. Conversely, other families desperately seeking benefits were usually rejected by NICA when Duchowny reported a child did not meet criteria.
Duchowny has declined to specify how much he’s been paid for work as an expert witness in malpractice litigation.
In a 2013 deposition involving a Virginia child with brain injuries seeking compensation from that state’s version of NICA, Duchowny was asked repeatedly to disclose his annual earnings from malpractice litigation. “Under a million dollars a year?” he was asked. “No answer,” he replied.
“Where would I find that answer?”
“You wouldn’t.”
“Is this a question you’re refusing to answer?” he was asked later.
“I’m not going to answer it.”
When asked in a Maryland case if there could be “adverse financial consequences” for a doctor who testified against other doctors in medical malpractice cases, he replied: “I am conscious of the fact that we have a referral program, and politically it’d be difficult to testify against physicians who refer to us.”
What’s known is this: Duchowny has said that about 20% of his overall income derives from litigation and expert witness work. And he testified in a June 2011 deposition that the money he’s been paid by NICA represents “a very small amount” of the overall money he’s earned as an expert witness.
In June 2013, Duchowny testified he’s been an expert witness between 400 and 450 times. He has said he charges $500-per-hour to review records, and $600-per-hour to give depositions. If he’s forced to leave the office for a trial, that will cost $7,500 per day.
In his email to the Herald, Duchowny denied that his substantial income as an expert witness, mostly representing doctors, might influence his work for NICA, which can involve rendering opinions that shield a physician from a malpractice suit. “I have rendered unbiased professional opinions that incorporated my training and experience as a pediatric neurologist,” he wrote.
He added: “I have dedicated the last 40 years to the clinical treatment of children with neurological disorders and published research to improve the quality of life and future of children affected by intractable epilepsy. My passion has always been to achieve the best possible outcomes for my patients.”
Deciding their fate
In May 1999, Duchowny examined then-18-month-old Jasmine Scott for NICA, describing her in a report as “a severely delayed infant” with floppy muscle tone who had “poor head control,” was “unable to bear weight” and evidenced “significant drooling.” He reported that her injuries did not result from “an acute episode of hypoxia or trauma in the course of labor and delivery” — a finding that would render the claim non-compensable by NICA.
Three years later, he reprised his conclusion that Jasmine did not suffer from oxygen deprivation at birth, leading to brain damage — only this time he was called as a trial witness for the doctor who delivered Jasmine.
“Are you suggesting that the average normal baby is not breathing when born, has zero [muscle] tone, is floppy and requires bag oxygen?” the family’s attorney, Rufus Pennington, asked.
“I’m saying that that’s a very common occurrence,” Duchowny replied. “Doesn’t correlate with hypoxic brain damage.”
A jury awarded the family $6.2 million in damages.
As NICA’s consultant, Duchowny’s role at the Division of Administrative Hearings has primarily been that of neutral expert; he is paid by NICA, not by doctors or parents. But in a case that reverberated across multiple courtrooms over five years, Duchowny first testified before a DOAH judge on behalf of doctors named in a malpractice suit.
Raven Shoaf was born on Nov. 28, 1997, at 3:51 a.m. She was diagnosed with spastic quadriplegic cerebral palsy after a catastrophic three-day delivery in which Raven’s mother bled profusely during delivery.
Raven’s parents, James and Sandra Shoaf, filed a medical malpractice lawsuit in Seminole County in January 2000, and Duchowny was retained then by the doctors who delivered the girl. Although NICA is an alternative to litigation, families that end up in NICA often file lawsuits initially, only to have the lawsuit paused by a judge until it can be determined if NICA applies.
No one disputed that Raven’s physical disabilities were profound. At issue was whether she was “substantially” cognitively impaired, as well. Her family insisted her intellect was undamaged, which would keep her out of NICA and preserve their legal rights.
Answering that question would prove difficult: Raven’s physical injuries were so profound that she had virtually no use of her arms and legs, and she could not speak. Raven could communicate only with her eyes.
On Feb. 22, 2001, Duchowny performed a half-hour compulsory medical evaluation, as part of the malpractice suit, in which he examined the 3-year-old in his Miami office. His report from the evaluation makes no explicit mention of whether he viewed Raven’s cognitive abilities as substantially impaired. He wrote that “her knowledge of her surroundings is unclear, despite her parents’ impression that she relates well to her environment.”
But four days later, Duchowny wrote an affidavit stating that Raven demonstrated “significant and permanent impairment of both physical and mental capabilities” — language that tracks the requirements of the NICA statute.
Acting upon the defendant doctors’ request, the trial judge halted the malpractice suit, and ordered the family to file a NICA claim at the Division of Administrative Hearings to determine whether Raven met the criteria for NICA compensation — a petition the family filed reluctantly on April 30 of that year. Raven’s doctors were permitted to participate in the NICA case as “intervenors,” a routine occurrence. This enabled them to present evidence and question witnesses.
When a hearing was held in administrative court by Judge William J. Kendrick, Duchowny’s opinion was admitted into evidence by the doctors who delivered Raven. The doctors presented testimony from a neuroradiologist that Raven’s injuries typically result in cognitive injury in about half of similar cases.
NICA presented testimony by a developmental psychologist whose two-hour examination of Raven was observed by NICA’s then-executive director, who traveled for the consultation. The psychologist said Raven had some cognitive strengths, such as identifying objects, but concluded: “Raven does present with cognitive delays, which appear to be significantly large.”
The Shoafs tendered testimony from three doctors — two of whom were pediatric neurologists — and a neuropsychologist. Raven’s speech and occupational therapists, who had worked with her for almost two years, also testified.
Wrote Janice E. Brunstrom-Hernandez, then-director of the Pediatric Neurology Cerebral Palsy Center at St. Louis Children’s Hospital, who examined her over eight hours on three days: “Raven’s motoric difficulties are NOT indicative of a cognitive impairment. In fact, Raven appears to be quite bright and most likely has at least normal and probably ‘above normal’ intellect.”
The Shoafs asked another pediatric neurologist, Michael Johnston, a professor at Johns Hopkins University’s medical school and chief medical officer of the Kennedy Krieger Institute, which specializes in brain injuries, to review a videotape of Duchowny’s evaluation. He testified in a deposition that Duchowny “seemed to imply that he really didn’t know what her cognitive ability was.”
“I certainly wouldn’t conclude that she was cognitively impaired,” Johnson said. “I don’t think [the exam] was adequate to make that diagnosis.”
Kendrick, the hearing officer, sided with the Shoafs. The Fifth District Court of Appeal, with all judges hearing the case, upheld that ruling, rendering the claim non-compensable by NICA — and freeing the Shoafs to proceed with their malpractice suit.
Duchowny’s involvement was not done. He then testified on behalf of the physicians during the May 2005 malpractice trial. The next month, a Seminole County jury awarded the Shoafs $24 million in damages. An appeals court later reversed the verdict.
Both doctors eventually settled with the Shoafs, one for $1 million and the other for $250,000.
The insurers for the hospital where Raven was born settled with the family for $13 million, state insurance records show. The insurers spent an additional $1.2 million fighting the malpractice claim.
Raven died on April 22, 2015, 11 years later.
More than two decades after Raven’s birth, Sandra Shoaf still weeps when speaking about her daughter’s disastrous delivery, her years-long legal battles, and the daily struggles that ended her marriage.
Duchowny’s assessment of Raven — that she would always be a child intellectually — still infuriates her.
“She was intelligent. She knew what was happening around her. She felt emotions. She spoke with her eyes. She recognized her mother and sisters. She fought with her siblings,” Shoaf said in her native Spanish.
“My little baby was never mentally disabled like this man said,” Shoaf added. “We had to prove that she really was intelligent, that her intellect was good. It was an incredible struggle.”
Shoaf added: “NICA was like a monster — immense and powerful. And it was very difficult to fight against something of this magnitude.”
“They really made us suffer.”
This story was originally published December 7, 2021 at 9:00 AM.
