A Special Case of Health Care Law Exercise Involving Physicians

By the first quarter of 2013, it is expected that the hottest law practice area would be health care law. As we enter the last quarter of 2012, the Robert Half Legal Hiring Index (a survey developed by Robert Half Legal, a legal staffing firm specializing in lawyers), has noted that about 27% of lawyers questioned from a group forecasted that healthcare indeed will experience the biggest growth in the coming months. The reason behind this is that many companies from various healthcare environments are developing their legal departments further by hiring licensed lawyers, contracts administrators and other support professionals to manage the complex work of expanding the businesses in compliance to regulatory and healthcare reforms without spending more money from external counsel.

Such is the scenario in mergers and acquisitions (M&As), where, as an example, tenancy of clinics in a medical tower must be ensured by responsible hospital administrators that the legal documents are well provided and no violations are made in terms of managing contracts.

Another example where healthcare law is of good practice is during situations where discrimination is exercised by employer to a sick employee and terminating him from a job that a physician may have been already given clearance to work, or by a doctor to a patient by not providing appropriate medical care for reasons of age or ethnicity.

For years, we have heard of pharmaceutical companies being sued by ordinary citizens due to serious side effects brought about by long-term medication of certain drugs. In a similar situation, doctors are being sued for medical malpractice by patients who were either dissatisfied by the results of their treatment and therapy or have encountered serious adverse effects, taking in millions of dollars for winning the case.

Seems like in a thousand and more ways, litigations involving healthcare are one of the great venues to make or spend money.

While patients can sue doctors for medical malpractice, many law firms also work to protect doctors from medical malpractice lawsuits or on situations where their practice and reputation are being questioned. One example of this is a case won on April 27, 2012 by Atty. Clifford E. Haines of Haines and Associates, a Philadeplphia boutique litigation firm, for his client Dr. Steven Graboff. Dr. Graboff filed a defamation claim against the American Association of Orthopedic Surgeons and the American Academy of Orthopedic Surgeons (together, AAOS). AAOS has made the false decision of publicly listing Dr. Graboff’s suspension on their website as well as their internet newsletter, AAOS Now.

Is this a Legal Case with the Objective of Silencing Doctors?

This is perhaps a simple case of politics within the professional group where Dr. Graboff was a member of, the AAOS. Dr. Graboff is of high stature being a Board Certified Orthopedic Surgeon since 1985. On top of that, he has been a most-sought after Orthopedic expert witness in and outside of the United States. He heads the American Orthopedic Associates, which provides expert witness orthopedic testimonies and forensic medical services. In the US alone he has participated in more than 500 cases both for the plaintiff and the defense to testify as witness. In his 20 years of litigation support experience, he cannot but avoid having put some of his co-members of the AAOS in jeopardy for probable medical malpractice.

For this, a suspension given him by The Association in June 2009 was borne out of alleged violations of their Standards of Professionalism for Expert Witness Testimony as a result of Colleran Firm’s whiting-out of a draft title in a draft report prepared by Dr. Graboff to provide expert witness testimony to one of its clients. The firm submitted the report as final. Despite Atty. Francis T. Colleran of the Colleran Firm giving a written letter dated February 13, 2009 advising the AAOS not to discipline Dr. Graboff for what he has done to the draft report without his knowledge or consent, the association continued on suspending him for two years. In the letter he also stated that the AAOS was only basing their judgment on an unauthorized and altered report he used to settle a medical malpractice case.

It was not hidden from the public that the grievance against Dr. Graboff was submitted to the AAOS on April 10, 2008 by Menachem Meller saying that the “report” violated the AAOS Standards of Professionalism for Expert Witness Testimony. Meller was a defendant doctor who faced a suit for the wrongful death of a patient, found guilty of malpractice and having summoned to pay $4 million.

Due to the medical malpractice crisis, this case clearly communicated to the public that expert witness doctors would want to be silenced by their fellow colleagues. In the case of Dr. Graboff, it opened his eyes to the reality that his suspension may have been a way to silence expert medical witnesses like him, especially when his report would put another doctor’s practice in jeopardy. However, this should not be case. Anyone is entitled to exercise their rights.

Dr. Graboff and his lawyer Cliffford E. Haines won the lawsuit on April 27, 2012 and the jury awarded the doctor $380,000.

Byline

Elizabeth C. Ryan practices personal injury law in Chicago, IL. Learn more by visiting www.lawecr.com