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Breaking News: Controversial Ruling Unlikely to Chill Scrutiny on Expert Witnesses

SoRelle, Ruth MPH

doi: 10.1097/01.EEM.0000422871.58126.77
Breaking News
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A recent verdict against a society that suspended one of its member for unprofessional expert witness testimony has raised fear that it could make organizations less likely to sanction physicians who provide false testimony in malpractice cases, but most experts said the court decision was so confusing it likely will have no effect at all.

The case started last May when a Philadelphia federal district court jury brought in a split verdict for Steven R. Graboff, MD, an orthopedic surgeon and expert witness, who filed against a law firm and his professional society, AAOS (American Academy of Orthopedic Surgeons/American Association of Orthopedic Surgeons). Dr. Graboff had acted as expert witness for a plaintiff in a medical negligence lawsuit, and transmitted a report that he said was labeled “draft” to the plaintiff's attorney. The case was settled without the knowledge of the physician who was sued, but a complaint was filed with AAOS about Dr. Graboff's testimony in the case.

Dr. Graboff said the attorney for whom he was acting had removed the words “draft report” from his statement and used it in pursuing the action. An AAOS grievance committee heard the case, and the AAOS judiciary committee and board of directors suspended Dr. Graboff for two years, publishing that action in an online publication called AAOS Now. Dr. Graboff sued the Colleran law firm and AAOS in the U.S. District Court of Pennsylvania. His suit charged AAOS with breach of contract, intentional interference with prospective contractual relations, defamation, and publication in “false light.”

The May 3 judgment noted that the jury found in favor of AAOS on the charges of breach of contract, intentional interference with prospective contractual relations, and defamation, but found for Dr. Graboff on the charge of publication in false light and awarded him $196,000 to be paid by AAOS. They also awarded him $196,000 from the law firm, which has since settled with Dr. Graboff.

AAOS said the case was not a defeat, but is asking the judge to set aside the jury's “false light” verdict. Daniel Rhynhart, the AAOS attorney, said that part of the judgment was inconsistent with its other decisions. “The verdict was about a summary in a newsletter, he said, noting that the jury found nothing wrong with the AAOS grievance process or even the suspension.

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Dr. Graboff's attorney Clifford E. Haines, however, claimed victory in a press release. (See FastLinks.) The decision “was, in part, a shot across the bow of organizations like the AAOS who have taken it upon themselves to set a higher bar for expert testimony than is required in a courtroom,” Mr. Haines said in a telephone interview. “I think the testimony supports the conclusion that it has been the intention of these organizations all along to silence physicians willing to criticize others.”

But the AAOS attorney, Mr. Rhynhart, said if Dr. Graboff's intent was to persuade AAOS to change its practices, the verdict did not have that effect. He said the case was the first full jury trial on this issue, and the jury found nothing wrong with it. “They are not changing program,” Mr. Rhynhart said. “From the AAOS point of view, the program was vindicated.”

Menachem Meller, MD, the orthopedic surgeon sued in the case about which Dr. Graboff wrote his report, said the public wants professional organizations to police their members. “The governing body for orthopedics is taking a stand for all the right reasons,” he said, adding that he is pleased that AAOS is pursuing the case. “They said they want relief after the jury award because the jury did not get it right. The judgment should not stand.”

Cal Chaney, the general counsel for the American College of Emergency Physicians, said his organization is not changing its practices based on the Graboff case but will be interested in the outcome of the appeal of the verdict, which he called self-contradictory and confusing. “Federal courts have ruled that medical societies that engage in expert witness review as part of their ethics programs and [that] follow due process and reporting requirements of the Health Care Quality Improvement Act are covered by the immunity from liability offered by the act,” he said in an email. “ACEP's procedures for addressing charges of ethical violations and other misconduct received extensive outside legal review in its formulation and revisions as has ACEP's compliance with the Health Care Quality Improvement Act in its reviews of allegations of ethics violations.”

Mr. Chaney said ACEP remained committed to addressing alleged violations of its policies by its members, and that the college has disciplined physicians for violations of its code of ethics and expert witness guidelines, but those disciplinary actions have not included removing a physician from ACEP membership.

Louise B. Andrew, MD, JD, an emergency physician who is a medical liability attorney and independent consultant for physicians on litigation and expert witness issues, said she encourages physicians to testify as expert witnesses because they have to participate in “this really flawed system if we are going to make it work at all.” That said, however, she also recognizes that many physicians do not understand what serving as an expert witness entails. “It's extremely seductive,” she said. “A lawyer calls and says, ‘I have this case about …. Will you testify?’ Most say yes right off the bat. The fact that they let the lawyers elaborate on the case already taints their thought process.”

Lawyers will sometimes call a case a “wrongful death,” Dr. Andrew said, but is it really that? “It's a really easy trap to fall into,” she said. “Once you get into it and if you don't have training how to do it ethically, the lawyers suck you in, only give you certain pieces of information, and don't let you know that there is other information to which you could have access. They don't want you to change your opinion.”

Howard Blumstein, MD, the immediate past president of the American Academy of Emergency Medicine, oversees the group's “Remarkable Testimony” web page, which has been static recently because of his own time constraints. “Some specialty societies are trying to monitor the behavior of their members as expert witnesses and trying to do that as a service to their specialties,” he said. “If they perceive a risk, they will have to make a value judgment whether the risk is worth the benefit they are providing to their membership. It's hard to know what the risk is.”

Suspending a member is pretty drastic, he said, because it can affect physicians when they have to reapply for hospital privileges or renew their state licenses. Frequently, they are asked if they have been disciplined by a professional society. “This is not just a slap on the wrist,” he said.

AAEM's Remarkable Testimony page allows the words to speak for themselves. “We are careful when we put this together to make the posting as objective and fair-minded as possible,” said Dr. Blumstein. They give the physicians the chance to respond. Before the site goes live, they allow the physicians to view the material and make an unedited response. “We bend over backwards to ensure fairness on our sites,” he said.

Dr. Blumstein said the Graboff decision may make an expert witness who feels he has been treated unfairly by a professional society more apt to file suit. Yet Jeffrey Segal, MD, JD, who operates Medical Justice, a group that offers medical malpractice protection for physicians, said the AAOS appeal is strong. “There was a single verdict against AAOS based on false light,” he said. “All the other claims [against AAOS] were dismissed.”

The motion filed by attorneys for AAOS states that the judgment “is contrary to the law and against the weight of the evidence because the jury found that AAOS Now contained no false statements, an essential element of a false light claim, and that AAOS did not breach the bylaws of the organization or tortuously interfere with Dr. Graboff's business relations. The AAOS Now article was simply a factual recitation of the grievance proceedings and disciplinary action that the jury found to be in accordance with the contract, the motion said.

Dr. Segal said he thinks there is a good chance the judge will overrule the jury or that the decision will be overturned by an appeals court. “The AAOS program is still strong,” he said. “The organization won't sit back and say the game is over.”

Dr. Andrew noted that medical boards are the only fair place for expert witness review. “Unlike with any professional society, a patient can go to the medical board and say this witness lied, and that's why I lost my case,” she said. “Doctors on the medical board come ffrom all different specialties, and no one can say they are trying to protect their colleagues.”

The North Carolina Medical Board lost a protracted case in 2006, however, after it revoked a neurosurgeon's license for testimony he gave in a malpractice case. The doctor fought the suspension in court, which reversed the board decision.

“That's one reason other boards won't get into it,” said Dr. Andrew. “The other really big reason is that all the medical boards are being harangued by consumer organizations because they are not doing enough doctor discipline.” Such groups say sanctioning against expert witness testimony means the boards are protecting the bad doctors, but Dr. Andrew said having attended meetings of the Federations of State Medical Boards for years, she does not believe that the state medical boards are going to touch these cases. “That leaves the current flawed system,” she said.

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