In Philadelphia where I practice, we are having a crisis. Young physicians choose not to stay, private medical malpractice insurers have fled the state, and the MCARE fund (a state-run excess liability account) is about to go unfunded. The underlying causes for this crisis are the lowest reimbursement rates and the highest medical malpractice rates in the country.
The underlying problem, however, is the plaintiff's medical expert. His activities cannot be viewed as victimless or principled.
The Pennsylvania Orthopaedic Society and the American Association of Orthopaedic Surgeons (AAOS) as well as a number of local organizations have advocated for reform, and recent efforts have aimed at retiring the MCARE fund in return for guarantees of continued practice and expanded care for the uninsured. It turns out, however, that the MCARE fund itself is part of the problem; its very existence is simply a cash cow for plaintiffs' attorneys. Although the MCARE fund was originally designed for the most unusual cases, it is now assumed to represent “policy limits,” engendering additional threats for personal property and physician family assets. The issue should not be how to fund MCARE but how to reasonably protect the physicians who provide front-line and specialty medical care. We would like the same professional courtesy afforded to other public servants such as police, firefighters, and legislators.
True reform is difficult to enact. The system in place is designed to resist it. The Pennsylvania Orthopaedic Society agenda is to amend the Pennsylvania Constitution to adopt caps on awards for noneconomic damages and a no-fault medical liability proposal. Unfortunately, this goal would require a joint resolution of two consecutive legislative sessions, and the legislators are often litigators themselves and have received significant support from trial lawyers. The Philadelphia medical malpractice bar includes first-degree relatives of the politically connected and family dynasties heavily invested in status quo.
Even as patient safety and clinical outcomes continue to improve dramatically, medical malpractice cases persist. The concept of negligence has shifted from bad treatment to bad outcomes. Unlike other civil suits where a no-fault mentality prevails, the defendant physician is demonized and accused of wanton indifference to the plight of the unfortunate victim. All that is necessary in this system is an unhappy person, the desire to harm the medical system, and a plaintiffs' medical expert (often from out of town) who does not let the facts get in the way of the truth. In this system, what the physician knew, using a real-time analysis, becomes irrelevant to the expert's opinion after the fact. In this system, the injured individual is simply a name to submit with the paperwork.
There is some hope, however. We cannot expect the courts or the legislature to look out for our best interests. In 2005, the AAOS established a committee on professionalism to deal with some of these challenges. To date, 70 grievances have been heard, mostly about expert testimony. The committee on professionalism has taken action in 16 cases, with four censures and 12 suspensions ranging in length from three months to two years. The process involves an initial administrative review, a hearing of the committee on professionalism, a possible appeal by the judiciary committee, and a final decision of the board of the AAOS.
In 2008, I filed a grievance against Dr. Steven Graboff of Huntington Beach, CA, for nonprofessional conduct. The issue involved a case of chronic osteomyelitis of the femur of 30 years duration. The year after the patient left my care with no active disease, his leg was amputated at another institution. Dr. Graboff's theory was that if only I had removed two cerclage wires that had been in place for the preceding three decades, the amputation would not have occurred. He would have enjoyed “healthy healing and complete eradication of his disease,” Dr. Graboff said.
At the grievance hearing, I presented the following points points:
1. Dr. Graboff was not an expert in the area in which he rendered his opinion. His web site, http://orthopedicexpertwitness.com, mentions 400 medical malpractice cases and a long list of areas of involvement, none of which included osteomyelitis. The only article he authored (decades earlier) had not having to do with osteomyelitis.
2. Dr. Graboff was not fair and impartial, and did not consider all the evidence. I presented a notarized letter from the x-ray file room clerk proving that the x-rays, CT scans, angiograms, and bone scans were never requested by anyone outside the institution. During his cross-examination, Dr. Graboff admitted never reviewing the films; this was in a case where the diagnosis was significantly established by the diagnostic studies.
3. Dr. Graboff did not consider the fact that the patient was a compromised host. He never mentioned that the patient was elderly, a smoker, malnourished, a crack cocaine addict and alcoholic, had diabetes and vascular disease (documented one vessel runoff below the knee), or that the 30-year-old injury and treatment had any relevance to the outcome.
4. Dr. Graboff did not consider the possible alternative that the wires had nothing to do with the amputation. The orthopedist who performed the amputation was present at the grievance, and confirmed that the wires were not the cause of the amputation. He supported the care provided by the hospital where I practice, and in fact, did not remove the cerclage wires when he performed the above-knee amputation.
In his first response to the AAOS, Dr. Graboff argued his opinions on merit. At the hearing, he alleged that his employer, the plaintiff's attorney, altered his report. My position was that one cannot have it both ways. If he felt the report was invalid, he should have mentioned that on the first communication with the academy, not the last. In addition, the alleged alteration of the report had no substance; it involved the removal of the word “draft” from the top of the page, and had nothing to do with the opinions rendered. Dr. Graboff tried to use a legal technicality to his advantage. I notified the Pennsylvania State Supreme Court disciplinary board of the alteration. I received a response stating that “not all bad behavior is actionable.”
On June 20, 2009, the AAOS board considered the grievance, and heard from the heads of the professionalism and judiciary committees. Dr. Graboff was invited, but he declined to appear. I presented a Victims' Impact Statement describing how Dr. Graboff's malevolent actions were harming me and my medical community. The board voted to suspend him for two years for having violated standards of professionalism.
But what about the hospital, the professional home of so many physicians? The hospital was afraid to try the case of an amputated leg in the Philadelphia Court of Common Pleas so they settled with plaintiff's counsel for $350,000. I suppose this is what is considered nuisance value.
As for the patient, he had a prosthesis made at a Veterans Administration hospital at no cost to him. The treating surgeon informed me he was doing well, and was then lost to follow-up. I made an effort to locate him using his chart and common search engines to no avail.
Six weeks after the board met and imposed sanctions, Dr. Graboff was scheduled to be an expert witness in another matter against a prominent subspecialty-trained orthopedist and major medical center. The case was dropped. His employer invoked “other factors.” I don't believe it. An IDEX search reveals 69 medical malpractice cases, many with the same attorney, relatives, or colleagues. This legal team is an assault and affront to the medical community.
The chance of enacting meaningful tort reform in the current political climate is small. In the meantime, those of us in medical practice need some protection when we show up to work every day. I would encourage other medical specialties to establish similar mechanisms and other physicians who are sued maliciously to pursue their pursuers. It does take time, money and effort, but it is time to fight back.