Precedent setting legal case sends strong message about intimidation and suppression of expert witnesses, and could help end the "White Coat of Silence"
Philadelphia, Pennsylvania (MMD Newswire) April 16, 2013 - It has been a long road to justice for Dr. Steven R. Graboff, a board certified orthopaedic surgeon who for the past 20 years has also been a highly regarded expert witness in hundreds of medical malpractice, wrongful death, personal injury, civil, and federal cases. In April of last year Dr. Graboff won a precedent setting defamation claim against the American Association of Orthopaedic Surgeons and the American Academy of Orthopaedic surgeons, collectively known as the AAOS, and a law firm whose actions resulted in Dr. Graboff's wrongful suspension from the AAOS. After a jury awarded Dr. Graboff $392,000, the AAOS filed a post trial motion to set aside the verdict. But on March 28, 2013, the Honorable Judge Joel H. Slomsky of the United States District Court for the Eastern District of Pennsylvania denied the AAOS' motion, upholding the verdict and, says Dr. Graboff, restoring the doctor's own reputation and credibility as an expert witness.
Dr. Graboff sees this latest ruling not only as professional and personal vindication but also as a stern and powerful message that expert witnesses cannot be intimidated and silenced. He says, "There is no place in our justice system for witness intimidation practices, such as that which is instituted and used by the AAOS to control its member physicians - and which in turn strengthens the 'White Coat of Silence.'"
The "White Coat of Silence" refers to the reluctance by all too many physicians to testify against other physicians in medical malpractice cases, or even to report unethical, incompetent, or dangerous colleagues. As Dr. Graboff has learned the hard way, it's not easy being a medical doctor who is willing to testify on behalf of medical malpractice plaintiffs. Doctors who speak out for malpractice victims may face repercussions not only from their fellow physicians but also from their respective medical societies.
Dr. Graboff's saga began a few years ago when he was retained by a Philadelphia medical malpractice law firm to provide expert witness testimony for one of their clients. He prepared a draft of a report, based only upon initial information the firm had given him, and clearly labeled the report as such. However, the law firm whited-out the word "DRAFT" and submitted the documents to the defendants as final. Dr. Graboff's preliminary opinion suggested that the doctor being sued had violated the standard of care in treating the plaintiff; as a result, that doctor filed a grievance with the AAOS, stating that Dr. Graboff had violated the Association's Standards of Professionalism regarding expert witnesses. Dr. Graboff was suspended from the AAOS in June 2009 for 2 years, and the Association publicly listed his suspension on their web site and online newsletter, AAOS NOW. Due to the way the listings were worded, the exposure resulted in significant questioning of Dr. Graboff's reputation, as well as a significant loss of income.
He filed a defamation claim against the AAOS and also filed suit against the law firm that had wrongfully turned over his draft report to the defendants (United States District Court for the Eastern District of Pennsylvania Civil Action No. 10-1710). The 2012 verdict in Dr. Graboff's favor was significant because his attorney, Clifford E. Haines of the Philadelphia firm Haines & Associates, argued that the expert witness program developed by the AAOS was intended to silence doctors who testify against other doctors. This, Mr. Haines explained, was the AAOS' way of handling the medical malpractice insurance crisis.
The jury apparently agreed with Mr. Haines' argument.
Said Mr. Haines after the verdict was delivered, "This case was really about standing up for the rights of medical expert witnesses and the patients for whom they testify. I believe that medical associations like The American Academy of Orthopaedic Surgeons (the AAOS) are going after doctors who help prosecute a patient's claim of medical malpractice. The principle we're fighting against -- the silencing of doctors - is why we took on this case." http://www.mmdnewswire.com/dr-steven-graboff-md-wins-lawsuit-aaos-and-colleran-firm-108119.html
Dr. Graboff says, "My legal team and I believe that my initial lawsuit against the AAOS, the jury verdict against the AAOS, and the Judge's ruling defeating the AAOS' attempt to overturn the verdict have been a precedent setting series of events. As far as I know, I am the first doctor to win a case like this against a large and prestigious medical society."
In his March 28, 2013 opinion upholding the verdict, the Honorable Judge Joel H. Slomsky wrote that it was evident that the AAOS has "intruded itself into the marketplace of orthopaedic surgeons who earn a living testifying as experts..."
Judge Slomsky added that the AAOS' Standards of Professionalism are all encompassing and written in such a broad manner that virtually anything an expert witness says or does is subject to AAOS review. He wrote, "The AAOS is well aware of its clout in the profession of orthopaedic surgeons and created its compliance program and standards to control the occupation of its members as experts. [The AAOS] is also aware that its enforcement program and standards would affect the income of doctors because the loss of AAOS accreditation has a substantial impact on the ability of an expert to work in that industry...the evidence shows that the intrusion of the AAOS into the marketplace of expert orthopaedic surgeons is substantial and jeopardized Dr. Graboff's source of income as an expert."
The Court's March 28 opinion and order to deny the post trial motion can be viewed in full here: http://ia801607.us.archive.org/4/items/gov.uscourts.paed.354973/gov.uscourts.paed.354973.169.0.pdf
An article by Mary Ann Pazanowski in the Bloomberg Bureau of National Affairs (BNA) "Health Law Reporter" (4 April 2013) concurs that Dr. Graboff's case is an unusual and significant one. The article explains how Dr. Graboff's case illuminates the sometimes-oppressive clout that organizations such as the AAOS have over their membership in regards to expert witness testimony. This scrutiny of expert witnesses by professional organizations short-circuits the judicial system. The Bloomberg BNA article on Dr. Graboff's case can be read here: https://docs.google.com/file/d/0B3nvxHb2xXaUZXlLSE1pTm9UeW8/edit?usp=sharing
For his part, Dr. Steven Graboff says he is relieved that his good name, reputation, and credibility as an orthopaedic expert witness have been restored. He notes, "What Judge Slomsky's ruling indicates is that the AAOS has been found guilty by the Court of knowingly publishing information on the Internet publicly that portrayed me in a false light, and that knowingly would have a substantial impact on my practice as an orthopaedic surgeon expert witness. The jury's original verdict and the Court's subsequent ruling vindicate me. And even more importantly, I believe that the verdict and ruling represent a victory for everyone for whom the pursuit of justice depends upon the testimony of an expert witness."
![Steven R. Graboff, MD]()
About Steven R. Graboff M.D:
For over 20 years, Dr. Steven R Graboff has worked with attorneys reviewing radiologic studies and records, answering their questions, writing opinions, and advising attorneys regarding the medical legal aspects of their cases for both the plaintiff and defense. He has qualified and testified nationally over 500 times as an expert witness in medical malpractice, wrongful death, personal injury, civil, and federal cases. Steven R. Graboff, M.D. is a board certified orthopaedic surgeon, a member of the American College of Forensic Examiners, and a Certified Forensic Physician. He is a diplomate of the National Board of Medical Examiners, American Board of Orthopaedic Surgery, and American Board of Forensic Medicine, American Board of Forensic Examiners, and is appointed by the State of California as a Qualified Medical Examiner.
Dr. Graboff received his medical degree from the University of California, Irvine in 1980. He did a general surgery internship at the University of California Irvine Medical Center and affiliated hospitals from 1980 through 1981, and he completed his Orthopaedic Surgery training in 1985 from Harbor-UCLA Medical Center and affiliated hospitals, Los Angeles, California.
As a guest lecturer, Dr. Graboff has taught musculoskeletal physical examination at the University of California, Irvine, School of Medicine. He also teaches Orthopaedics, differential diagnosis, and musculoskeletal radiology at California State University, Long Beach.
Dr. Graboff is a medical specialist and advisor for the Huntington Beach Fire Department Office of Emergency Management & Homeland Security and a member of the Orange County Medical Reserve Corps. He also volunteers his services in community education through the Huntington Beach Fire Department. Dr. Graboff is a member of the American Medical Association, the California Medical Association, the Orange County Medical Association, the California Orthopaedic Association, the California Faculty Association, the California Teachers Association, and the Association of University Professors.
For further information visit http://www.DrGraboff.com
Contact:
Steven R. Graboff M.D.
American Orthopaedic Associates
17752 Beach Blvd. Suite 202
Huntington Beach, California 92647
Phone: 714.843.0019
DrGraboff@gmail.com
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