On March 28, 2013, a federal judge for the United States District Court for the District of Pennsylvania denied the motion of the American Academy of Orthopaedic Surgeons/American Association of Orthopaedic Surgeons (“AAOS”) to set aside the $196,000 jury verdict against it that was in favor of one of its members. The jury’s April 12, 2011 verdict determined that AAOS engaged in tortious conduct by portraying one of its members in a false light when it published an article in which it gave the impression that its member wrote a misleading report, implying that the member had information that he intentionally omitted at the time he prepared a draft report for lawyers representing a medical malpractice plaintiff. The federal judge concluded that a reasonable jury could find that the AAOS article gives the false impression through manipulation of facts that the member was dishonest, reckless, or an inaccurate expert, which would be highly offensive to a reasonable person.
The member (“expert”) is a board certified orthopaedic surgeon who maintains an active orthopaedic clinical practice, has provided forensic orthopaedic consulting services, and has served as an orthopaedic expert witness since 1985. He had been retained by the lawyers representing a medical malpractice plaintiff in a medical malpractice claim against another member of AAOS (“Defendant member”). The expert submitted a report that he explicitly marked as “DRAFT REPORT” to the plaintiff’s medical malpractice lawyers that summarized his preliminary opinions based on the records he had been provided regarding the care that the Defendant member had provided to the medical malpractice plaintiff. The expert was never asked to provide a final report, he was not provided with additional records or information, and he was unaware that the plaintiff’s lawyers had removed the words “DRAFT REPORT” from his preliminary report and that the draft report was used by them during settlement negotiations.
Some AAOS History And Its Procedures
In 2002, the AAOS Board of Directors created the AAOS Expert Witness Program under the direction of the Expert Witness Project Team in response to what the orthopedic community perceived to be a “medical malpractice crisis.” A member of the Expert Witness Project Team identified the crisis as high jury awards in medical malpractice cases resulting in high premiums for medical malpractice insurance. One goal of the Expert Witness Project Team was “[t]o be responsive” to the desire of members to effectively address “the ‘Expert Witness Problem’ through various methods and strategies.”
When a complaint is made by one of its members that another member has violated the AAOS Standards of Professionalism, the AAOS Committee on Professionalism reviews the materials submitted by the grievant and may further investigate to determine whether the grievance is appropriate for committee review. If determined to be so, the Chair of the AAOS Committee on Professionalism creates a hearing panel consisting of Committee on Professionalism members to conduct a hearing and make a recommendation regarding discipline, which can be appealed to the AAOS Judiciary Committee, which will then hold a hearing and make a recommendation. The two recommendations are reviewed by the AAOS Board, which makes the final determination regarding discipline, for which there are three levels of discipline: censure, suspension, and expulsion.
The Chair of the AAOS Committee on Professionalism is an orthopaedic surgeon who stopped performing surgery in order to focus on treating patients and serving as an expert in workers compensation cases on behalf of insurance companies. Since February or March 2009, he has served as the Chair of the AAOS Council on Advocacy that handles lobbying in Washington D.C. for medical liability reform. He is also involved in the AAOS Political Action Committee, which makes political contributions to members of Congress. He also served as a member of the AAOS Expert Witness Project Team.
The AAOS Proceedings Against The Expert
On April 21, 2008, the expert received notice from AAOS that a Grievance was filed against him by the Defendant member for alleged violations of AAOS Standards of Professionalism on Orthopaedic Expert Witness Testimony in connection with his expert report. The AAOS Committee on Professionalism conducted an evaluation of the grievance and found sufficient grounds to hold a hearing. The expert was provided a copy of his report with the words “DRAFT REPORT” deleted and brought that to the attention of the Committee. Nonetheless, the Committee determined that the expert “gave false testimony, was not fair and impartial, failed to evaluate the care at issue in light of generally accepted standards, and did not exhibit knowledge about the standard of care for the condition at issue.”
The Committee recommended that the expert be suspended from AAOS membership for two years, which punishment was upheld by the AAOS Judiciary Committee and the AAOS Board of Directors. Thereafter, the AAOS published an article about the expert’s suspension in the September 2009 issue of AAOS Now, an AAOS publication available to members in hard copy and to the public and members electronically on the AAOS website.
The Harm Caused By The Suspension And The AAOS Now Article
Before his two-year suspension, the expert did forensic work in medical malpractice cases for law firms located in Alaska, Hawaii, Nevada, New Mexico, New York, Pennsylvania, Puerto Rico, Texas, and Utah. His name was widely disseminated in the legal community because he was one of few experts willing to testify on behalf of plaintiffs against other orthopaedic surgeons. He was also retained by insurance carriers as a defense expert in personal injury actions.
After the expert was suspended from the AAOS and the AAOS Now article was published, a significant change in the expert’s business occurred. His client base diminished and not one of his 500 attorney and insurance carrier clients has retained him since the publication of the article. Prior to the publication, he did work for Allstate Insurance, USAA Insurance, and Travelers Insurance. After the publication, these insurers refused to retain him. His annual loss associated with these three insurance companies is approximately $500,000. Furthermore, since the AAOS Now article was released, every time the expert testifies as an expert witness, he is questioned about his suspension from the AAOS.
The law applicable to the expert’s false light claim is as follows: One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if (a) the false light claim in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
The federal judge in the expert’s case against the AAOS determined that “[v]iewing all this evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that Defendant [member] acted with knowledge or with reckless disregard of the fact that the article created a false impression of [the expert]. Accordingly, the evidence was sufficient to prove the false light claim, and there is no basis to set aside the jury’s verdict.”
Steven R. Graboff, M.D. v. The Colleran Firm, et al., Civil Action No. 10-1710.
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