Medical societies’ authority to discipline expert witnesses faces challenge

A column analyzing the impact of recent court decisions on physicians

By — Posted June 25, 2012.

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The American Academy of Orthopaedic Surgeons is fighting a jury verdict that found the society unfairly portrayed a former member who acted as an expert witness.

California orthopedic surgeon Steven Graboff, MD, sued the AAOS after the society suspended him for allegedly giving improper expert witness testimony in a medical negligence case. In May, a jury held that the society falsely portrayed Dr. Graboff in a publication that detailed his discipline. The AAOS has requested that a judge throw out the verdict.

The judgment is among the first where an expert witness has challenged medical society discipline and won a jury award, medical experts said. The verdict could encourage more expert witnesses to sue speciality societies that sanction their behavior, said Louise B. Andrew, MD. She is a medical liability attorney and independent consultant for physicians on litigation and expert witness issues.

“The more of these cases against medical societies there are, the more emboldened will be those ‘experts,’ whose testimony is exposed, to take this route,” Dr. Andrew said. “Medical societies are particularly vulnerable, because they do not enjoy any kind of immunity [that] medical boards do, and the pursuit of ethics cases takes up a lot of staff time [and] involvement of attorneys.”

The Graboff case arose from a medical negligence lawsuit in which the doctor agreed to act as an expert witness for the plaintiff, according to court records. In a report provided to the plaintiff’s attorney, Dr. Graboff stated that the doctor-defendant breached the standard of care, court documents said. The opinion was used by the attorney to settle the case.

The AAOS investigated Dr. Graboff’s testimony after receiving a complaint. Dr. Graboff claimed that the report submitted to the plaintiff’s attorney had been preliminary. The plaintiff’s attorney had removed the word “draft report” from the paper without Dr. Graboff’s knowledge, he said.

The AAOS found that Dr. Graboff had violated its standards of professionalism, suspending him from membership for two years. Medical society discipline cannot keep a doctor from practicing or acting as an expert witness. The society questioned why Dr. Graboff signed and provided the report to the attorney if it wasn’t finished, said Daniel E. Rhynhart, attorney for the AAOS. The report appeared and sounded like a final opinion, Rhynhart said. Dr. Graboff’s case and his suspension were published online in AAOS Now, a society publication.

In 2010, Dr. Graboff sued the AAOS in the U.S. District Court for the Eastern District of Pennsylvania. His claims included publication in a false light, defamation and interference with prospective contractual relations. The doctor said the AAOS had damaged his credibility as an expert witness, caused him embarrassment, and led to lost income and revenue for his expert services.

Dr. Graboff also sued the Philadelphia law firm that handled the medical negligence case. A jury found in favor of the AAOS on most claims, but held that the medical society falsely portrayed Dr. Graboff in the newsletter. They awarded the doctor $196,000 from the AAOS and $196,000 from the law firm.

At this article’s deadline, the law firm had not returned messages seeking comment. In an email, Dr. Graboff referred questions to his attorney.

Judge could vacate decision

The verdict shows that expert witnesses cannot be unfairly silenced by medical societies, said Clifford E. Haines, Dr. Graboff’s attorney.

“This case was really about standing up for the rights of medical expert witnesses and the patients for whom they testify,” Haines said in a statement. “Medical organizations are trying to deal with medical malpractice not by making sure their surgeons are doing top-notch work, but by going after the guys acting as expert witnesses.”

Rhynhart called the verdict “strange” and inconsistent. He noted that the jury did not find the society liable on the defamation and other claims.

“If we didn’t do anything wrong, and there’s no false statements in the article, then how the heck does this portray him in a false light?” he said. “We thought it should have been a complete defense verdict.”

Because it won most of the claims, the AAOS does not view the case as a defeat, Rhynhart said. In late May, the society asked that the court correct the verdict.

The AAOS’ grievance “process has good motivation and is for good purposes,” he said. “They’re trying to do the right thing to have truthful and fair testimony.”

The Graboff case is believed to be the first of its kind in the state, said Elizabeth Metz, general counsel for the Pennsylvania Medical Society. The society does not have enough details to speak directly about the case, she said. In general, medical societies should have the right to discipline members if they are found to have breached society standards, she said.

“Our position is that experts need to be accountable, and we support the right of speciality organizations to adopt appropriate standards and enforce them,” she said. “We would like to see our licensing boards be more involved in reviewing the testimony. That has not happened to date.”

American Medical Association policy states that testimony a physician gives as an expert witness is considered to be the practice of medicine. The Association encourages state medical societies to work with licensing boards to develop disciplinary measures for physicians who provide fraudulent testimony.

Battling legal challenges

Most state medical boards have the authority to discipline doctors found to have provided unethical witness testimony, according to the Federation of State Medical Boards. However, each board’s process of investigating complaints and enacting discipline differs.

The Pennsylvania Board of Medicine said it reviews and takes appropriate action on any complaint that constitutes a violation of the state’s Medical Practice Act. The board would not specifically say whether it has taken action on expert witness complaints, nor how many complaints it has reviewed on the subject.

A spokesman for the FSMB said the organization does not track data on actions taken by boards for improper expert witness testimony.

Expert witnesses that have challenged medical society sanctions in court generally have lost, said Russ Pelton, former general counsel for the American Assn. of Neurological Surgeons. He is a consultant on expert witness issues for the AANS, the AAOS and other specialty societies.

Pelton called the Graboff verdict “startling,” saying cases such as his do not often happen. He said he is hopeful that a judge will vacate the jury’s verdict.

Regardless of how the case ends, the AAOS will continue to defend its professional standards program, said Murray Goodman, MD, chair of the AAOS Committee on Professionalism. Such legal challenges should not stop medical societies from reviewing expert witness testimony and taking action if necessary, he added.

“One swallow doesn’t make a summer,” he said. Such cases “should not discourage doctors or specialty societies. There is no better judge than our own peers.”

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