May 2013 Expert Witness Update

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In Graboff, M.D. v. The Colleran Firm and AAOS, et. al. CA 10-1710 (EDPA March 28, 2013), a jury rendered a verdict in favor of Plaintiff Steven R. Graboff, M.D. and against Defendants American Academy of Orthopaedic Surgeons and American Association of Orthopaedic Surgeons (AAOS).  The jury found that Defendants engaged in tortious conduct by portraying Dr. Graboff in a false light and awarded him $196,000.00 in damages.

AAOS is a private organization whose membership is comprised of orthopaedic surgeons.  In June 2009, Plaintiff, an orthopaedic surgeon and expert, was suspended from membership in the AAOS because he issued a report, which was altered by the defense firm that hired him as an expert, against another doctor in the underlying medical malpractice case.

Plaintiff was retained by a law firm known as The Colleran Firm as an expert.  He submitted a draft expert report concerning the work of a Dr. Menachem Meller, a defendant in a medical malpractice case.  The report had the words “DRAFT REPORT” in bold, capital, underlined letters on it.  Later the plaintiff received notice from the AAOS of a Grievance filed against him by Dr. Meller in connection with his expert report and a hearing was to be held.  In preparing for the hearing, Plaintiff was provided with his report and he saw the words “DRAFT REPORT” had been deleted by the Colleran Firm.  Shockingly, it was learned the defense attorneys did this for use in settlement negotiations.  Despite advising the AAOS of this, it suspended him from its membership for 2 years.

Thereafter, the AAOS published an article about Plaintiff’s suspension in an issue of AAOS Now, an Association publication available to members and the public on the AAOS website.  It should be noted that the plaintiff was one of only a few experts willing to testify on behalf of plaintiffs against other orthopaedic surgeons.

Once published, the plaintiff sued the Colleran Firm for breach of contract, duties of confidentiality and trust and negligence.  Smartly, the Colleran Firm settled with the doctor.  Plaintiff also sued the AAOS for breach of contract, tortious interference with contractual relations, commercial disparagement, defamation and false light invasion of privacy.

During the case it was learned that the AAOS had an entire “expert witness team” – which they foolishly believed was causing the mythical “medical malpractice crisis” we always here about but, does not exist.  The team was led by an orthopaedic surgeon who stopped performing surgery to work as an expert in workers compensation cases against workers and for insurance companies and to lobby Congress through the AAOS Political Action Committee, which makes political contributions to members of Congress.

Pennsylvania recognizes four types of invasion of privacy actions: (1) intrusion upon seclusion; (2) appropriation of name or likeness; (3) publicity given to private life; and (4) publicity placing a person in a false light.  Pennsylvania has adopted the Restatement (Second) of Torts definition of the tort of false light, which states 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.

Restatement (Second) of Torts § 652E.

The falsity here involves the inference derived from published statements, whether those statements are actually true or not.  The court held that the element of falsity is met if the plaintiff alleges that the defendant knowingly or recklessly selectively printed or broadcast true statements or pictures in a manner which created a false impression – i.e. selective editing.  To permit an editor to publish misleading portions of the truth is the equivalent of sanctioning lies. Thus, one can recover for a false light claim when true facts are disseminated in a way which creates a false impression.

The court held there was ample evidence to support the false light claim because the plaintiff testified about the misrepresentations and incompleteness of the content of the AAOS Now article.  The court compared the article with the plaintiff’s testimony and found that the article gives the impression that Dr. Graboff wrote a misleading report, when he did not.  The article implied that he had information at the time he drafted the report, which he intentionally omitted, leaving the reader with the impression that Plaintiff was sloppy or overlooked facts.  Dr. Graboff testified that the information was not available to him when he drafted the report and the court held this false article would be highly offensive to a reasonable person.

The court also found evidence that the Defendant either knew of or acted in reckless disregard of the false light.  The AAOS knew of Dr. Graboff’s long history as an expert testifying on behalf of plaintiffs and against orthopaedic surgeons.  Defendant also knew the report authored by Plaintiff in the Jones matter was a “DRAFT REPORT” which the Colleran Defendants misrepresented as a final report for purposes of settlement negotiations.  The court found that viewing all this evidence in the light most favorable to the plaintiff, a reasonable jury could conclude that Defendant acted with knowledge or with reckless disregard of the fact that the article created a false impression of Dr. Graboff.

This appears to be a classic example of being “blackballed.”  Although it is a lengthy decision, which is here, it certainly is worth a read as the footnotes give you an idea of just how distorted the medical-legal continuum has become.  After reading all of this, do you think it will be easier or harder to get a doctor to testify against another doctor?