Many specialty boards and their respective associations are now taking a hard look at testimony provided by their members in medical malpractice cases. Most often, this scrutiny is reserved for those physicians that are testifying against their brethren in the profession. Is this scrutiny meant to chill the testimony of such wayward members? After all in order to find a physician negligent the Plaintiffs’ attorney is forced to find a physician to criticize the care rendered. The lay opinions of non-physicians can not implicate a physician for negligence. If no qualified expert can be found, then the case is dismissed by the court.
In particular is the recent sanction by the AAOS (American Association of Orthopedic Surgeons) as against its member Steven R. Graboff, M.D. who is self-described as a “renowned orthopaedic expert witness with over five hundred attorney clients”. Apparently, Dr. Graboff served as an expert for Plaintiff against Philadelphia orthopedic surgeon Dr. Menachem Meller, a surgeon whom Dr. Graboff had previously criticized and which resulted in a $4 million verdict against him. The subject case involved care that resulted in the amputation of a patient’s leg. Dr. Meller filed a complaint against Dr. Graboff regarding his expert testimony.
At issue in the Association’s case against Dr. Graboff was the fact that a preliminary report was used to settle the case when Dr. Graboff had not yet reviewed all the relevant materials. The attorney admitted to taking Dr. Graboff’s preliminary report, redacted the word “draft” and presented the report as if the final version in order to extract settlement. Dr. Graboff would not have reached the same conclusions had he reviewed all the materials.
The story and Dr. Graboff’s response can be found here: http://tinyurl.com/yk8bro9
DocbLawg Comment - The circumstances of the Graboff case seems to be of the variety that is not usually seen; that the attorney actually admits to the malfeasance. I was faced with a similar situation years ago when defending a neurosurgical spine case. The Plaintiffs’ expert had been suspended from the Neurosurgical Association for testifying two different ways in two very similar cases to the extent that his testimony in one case impeached his testimony in the other case. Unfortunately, the Plaintiffs’ attorney did not know about the suspension until the expert’s deposition. At that point the expert tried to downplay the entire issue but I was ready with the Associations’ attorney who was more than willing to impeach the testimony of the expert. That case dismissed (no money being paid in settlement) 1 week before trial and after litigation costs had exceeded $250K. Attorneys need to be careful when selecting experts because you never know what might be hidden in the closet.
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