Patient safety scored a major victory last week in Pennsylvania, when a federal court judge upheld a jury verdict against the American Academy of Orthopedic Surgeons (AAOS), the primary professional organization in the specialty, holding that the organization had unfairly damaged the reputation of Dr. Steven Graboff.
Dr. Graboff, a board certified orthopedic surgeon and a member of the AAOS, was one of the rare members of his specialty willing to review and testify for patients in medical malpractice cases. The physician-defendant in a case in which Dr. Graboff was involved took offense, and filed a complaint against him with the AAOS disciplinary system. After a couple of fairly brief hearings, the AAOS Board of Directors voted to suspend Dr. Graboff from the Academy for two years. The AAOS published notice of the suspension in its monthly bulletin to members, and also posted the decision on its public website, where it was readily accessible through search engines such as Google.
As a result of the suspension, law firms that had previously used Dr. Graboff’s services as an expert witness told him that they could no longer hire him as a reviewer because of the suspension. One firm even asked for a refund of monies already paid to Dr. Graboff for work he had performed before the suspension. The economic loss was significant.
A Pennsylvania jury found that the AAOS had portrayed Dr. Graboff in a “false light,” by implying that he had made deliberately false statements in a “medical-legal report,” when in fact he had simply given a preliminary opinion to an attorney who had not supplied him with all the facts. The jury awarded damages of nearly $200,000.
Dr. Graboff is to be commended for taking a stand against the intimidation tactics of professional organizations, some of which have been quite active in discouraging their members from testifying on behalf of injured patients in malpractice cases. The AAOS system, for example, permits only fellow physicians to file grievances–so that a patient whose valid malpractice claim was defeated by false or misleading testimony from a defense expert would not be able to complain.
Juries are well able to listen to expert witnesses for both sides, and reach decisions on which testimony is worthy of belief. Lawyers are well able to expose flaws in reasoning and methodology in expert testimony by vigorous cross-examination. However, the integrity of the legal process depends on the willingness of qualified physicians to participate as advocates for patients who have been harmed by malpractice. Without such physicians, the doors to the courthouse are shuttered to an injured patient.
The attempt by professional organizations to discipline members for having the audacity to testify against fellow physicians has a dangerous and chilling effect on doctors who might otherwise be willing to come forward on behalf of their patients. The “conspiracy of silence,” which discourages physicians from speaking up against other physicians is strong enough without witnesses for patients having to face the added risk of professional disciplinary action for giving testimony that displeases the medical establishment.
While the playing field for patients can never be level, due to lack of access to information and continuing professional pressure on physicians, the Graboff court took an important step in helping to avoid making the situation any worse.
Read the full opinionin Graboff v. Colleran here.