California orthopedic surgeon Steven Graboff, M.D. provided expert testimony against a fellow orthopedic surgeon in a medical negligence case in 2007. It wasn’t the first time. Dr. Graboff has been an expert witness over 500 times over the last 20 years.
Grievance Filed
Steven Graboff, M.D.On April 10, 2008, a grievance was filed against Dr. Graboff by the surgeon against whom he had testified, alleging violations of American Academy of Orthopaedic Surgeons (AAOS) Mandatory Standards. The grievance arose from statements made by Dr. Graboff in a medical-legal written report to plaintiff’s attorney. The report was part of a medical liability lawsuit in which a patient claimed his orthopedic surgeon failed to remove certain hardware (cerclage wires) during two surgeries on the right femur resulting in an amputation.
According to a September 2009 story in the Academy’s publication, AAOS Now, Dr. Graboff was initially absolute in his opinion that the defendant surgeon had violated the standard of care by not removing all hardware and that there was no medical or surgical condition precluding removal of the hardware.
But the article continued that Dr. Graboff then contradicted himself and acknowledged that removing all hardware from an infected femur is not always possible, safe, or standard of care. Dr. Graboff, according to the story, further admitted his report had been based on lack of information and that the defendant surgeon had neither fallen below the standard of care nor was responsible for the subsequent consequences.
Graboff’s Defense
Dr. Graboff defended himself against the complaint during a grievance hearing on October 24, 2008, noting that he had only written a “draft” opinion for the plaintiff’s attorney. The attorney, without Graboff’s permission, whited out the “draft” from the document and used it to reach a settlement with the defendant surgeons.
AAOS Suspends Graboff
Nevertheless, the Grievance Hearing Committee recommended that Dr. Graboff be suspended from AAOS membership for two years. Daniel Rhynhart, AAOS’s attorney, said the society questioned why Graboff signed and provided the report if it wasn’t finished. Rhynhart said the report appeared and sounded like a final opinion.
Dr. Graboff appealed the recommendation of the hearing panel, and the AAOS Judiciary Committee conducted an appeal hearing in February 2009. The Committee unanimously agreed that the AAOS had afforded both parties due process and reaffirmed and adopted the report and recommendation to suspend. In their report, the Judiciary Committee opined that testimony is not narrowly defined within the context of oral depositions and/or courtroom examinations, but applies to written expert opinions as well as sworn testimony.
In a June 2009 meeting, the AAOS Board of Directors also considered five other grievances filed under the AAOS Professional Compliance Program and alleging violations of the AAOS Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony.
AAOS Now, reported on the disciplinary action against Dr. Graboff and the other five surgeons disciplined by the organization in that September 2009 story.
Graboff Sues, Wins
Dr. Graboff then did something very unusual and practically unprecedented.
He sued the AAOS in a Pennsylvania federal court in 2010. He said the AAOS article showed him in a false light, defamed him and interfered with prospective contractual relations. He said AAOS had damaged his credibility as an expert witness, causing him embarrassment and loss of income.
Dr. Graboff also sued the attorney and law firm who had removed the “draft” designation from his medical opinion in the original case.
In May 2012, a jury held that AAOS falsely portrayed Dr. Graboff in the AAOS Now article and awarded him $380, 000 to be paid by AAOS and the law firm that manipulated his draft report.
Source: Wikimedia Commons
Rhynhart said it was a curious verdict since the jury sided with AAOS on most counts. AAOS is asking a new judge to throw out the jury’s verdict.
Expert Witness Debate
Lawyers for both sides are portraying this case as something bigger than just the censure of one surgeon. Dr. Graboff’s lawyer says this is about protecting physicians to provide unvarnished testimony in trials. AAOS’ lawyer says this is about holding members accountable to strict disciplinary standards when providing expert testimony about colleagues.
Louise Andrew, M.D., a medical expert, told the American Medical News on June 25, that the judgment is among the first where an expert witness has challenged medical society discipline and won a jury award. Dr. Andrew said the verdict could encourage more expert witnesses to sue specialty societies that sanction their behavior.
“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. 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, ” added Dr. Andrew.
The “White Coat of Silence”
Dr. Graboff told OTW in a July 10 email that doctors injure patients as a result of medical negligence over 200, 000 times a year.
“Those injured patients, ” said Dr. Graboff, “need compensation and closure. The responsible doctors need to be held accountable, and in some cases they need to be removed from practice. Medical malpractice lawsuits address these issues.”
The American legal system is well equipped to deal with medical expert witnesses and expose their level of competence and credibility, says Dr. Graboff. But because of the “white coat of silence” the legal system is hampered by a lack of well qualified doctors willing to testify against those doctors whose negligence has damaged patients, and in some, who repeatedly cause injury to patients.
“This ‘code of silence’ unwritten rule that a doctor doesn’t testify against another doctor is fortified by professional associations like the AAOS who through their ‘professional compliance programs’ intimidate their members by censure, suspension, expulsion, public humiliation, and damage to their reputations to not testify against their fellow doctors.”
Finally, says Dr. Graboff, “This ‘white coat of silence’ needs to be removed and professional societies like the AAOS need to stop their practice of expert witness intimidation and ‘back door tort reform.’”
“The court in my lawsuit against the AAOS, having unanimously ruled in my favor, obviously arrived at the same conclusion.”
Dr. Graboff’s attorney, Clifford E. Haines, a past president of the Pennsylvania Bar Association, said the verdict shows that expert witnesses cannot be unfairly silenced by medical societies.
“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.”
AAOS Appeals
AAOS’s lawyer Rhynhart said the verdict was “strange” and inconsistent because the jury did not find the Academy 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.”
In late May, AAOS asked the court to correct the verdict.
Expert Witness Governance
American Medical Association (AMA) 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.
According to the Federation of State Medical Boards, most state medical boards have the authority to discipline doctors found to have provided unethical witness testimony. However each board’s process of investigating complaints and enacting discipline differs.
Russ Pelton, a former general counsel for the American Association of Neurological Surgeons, said in the AMA story that expert witnesses that have challenged medical society sanctions in court generally have lost.
Graboff Qualifications
Dr. Graboff, according to his web site, is a board certified Orthopaedic Surgeon, a member of the American College of Forensic Examiners, and a Certified Forensic Physician. He is a diplomat of the National Board of Medical Examiners, American Board of Forensic Medicine, American Board of Forensic Examiners, and is appointed by the State of California as a Qualified Medical Examiner.
He 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.
Future Grievance Process
Whether or not AAOS is successful in getting their $180, 000 penalty overturned is unknown for now. Dr. Graboff’s economic award amount seems trivial with all the law firms involved and probably barely covered legal costs. His real victory was a jury’s acknowledgment that a professional society had harmed one of its own after testifying on behalf of a patient against his surgeon.
Will this change operating procedures and the grievance process at AAOS? That’s fodder for another story.
