Plaintiffs' attorneys have long alleged a "conspiracy of silence" among physicians and health care institutions to discourage and punish doctors who serve as plaintiff's experts in medical malpractice cases. Two recent cases suggest that there are extrajudicial efforts to discourage and punish doctors who testify against other doctors; and courts and juries have responded to this alleged conspiracy to silence plaintiff's experts.
In Sutch v. Roxborough Memorial Hospital,http://www.messalaw.com/wp-content/themes/messalaw-theme/docs/051712-sanctions-decisions.pdf, the plaintiff retained an emergency room physician from the Hospital of the University of Pennsylvania ("HUP") to testify about the standard of care in area emergency rooms with respect to follow-up after diagnostic testing. Apparently, an emergency room test, presumably a chest x-ray, suggested lung cancer but the patient was never advised of the findings. Due to the delay in diagnosis, the plaintiff died from late stage lung cancer.
During the discovery phase, plaintiff's counsel learned that the defense wrote a letter to HUP's General Counsel complaining about the plaintiff's expert's opinion. The letter advised: "the plaintiff has retained one of [HUP's] emergency room physicians ... who has offered the untenable opinion that because [the Defendant Doctor at Roxborough]ordered the test, it was his responsibility to follow through on obtaining the results and advising the patient of them."Indeed, defense counsel stated further:"[Plaintiff's expert] has clearly overlooked the well-established concept of hand-off to an accepting inpatient team and I thought you might want to know that, if this is her position and plaintiff's attorneys become aware of it, it could expose [HUP] to significant liability." Clearly the intent of this letter was to encourage HUP's General Counsel to reach out to the plaintiff's expert and discourage her from testifying.
The plaintiff's counsel filed a motion for sanctions against defense counsel "for violation of ethical rules, improper conduct and obstruction of justice." During the hearing on the motion for sanctions, defense counsel said that it is common practice for medical malpractice defense lawyers to be in touch with counsel for local health care institutions about any of their affiliated physicians who would testify as experts in local malpractice cases. Because most physicians and surgeons are affiliated with local health care institutions, this means that in virtually every malpractice case, it is common practice to advise a plaintiff's expert's employer (or affiliated hospital) that the doctor testifies against other doctors. If this in fact is the case, then valid concerns about a "white coat conspiracy of silence" exists. Clearly, physicians who are already reluctant to testify against a local colleague, could be made even more reluctant if they are aware that serving as an expert exposes them to further scrutiny from their employer.
Following a hearing on the motion for sanctions, the trial court entered an order against defense counsel advising her to refrain from contacting the plaintiff's experts or their employers. The trial court left upon the possibility of further sanctions post-trial if she found that the conduct affected the outcome of the trial.
In most cases, the plaintiff's counsel does not learn about any letter directed to plaintiff's expert's employer. He or she may be suspicious if the expert withdraws or advises that she is no longer willing to testify, but she has no proof of overt interference. If this is a widespread practice, then it should be clarified within the rules of professional conduct. Attorneys certainly have an obligation of zealous advocacy. Generally this does not include contact through third parties that would be prohibited if done directly. For example, an attorney is not generally permitted to contact an adversary's expert and attempt to persuade him to withdraw or not testify. Contacting the General Counsel for the expert's employer to discourage the expert seems to be an indirect attempt to do what the attorney cannot do directly.
In Graboff v. The Colleran Firm http://www.mmdnewswire.com/dr-steven-graboff-md-wins-lawsuit-aaos-and-colleran-firm-108119.html an Orthopedic Surgeon sued a plaintiff's law firm and the American Academy of Orthopaedic Surgeons ("AAOS") arising from his participation as an expert in a medical malpractice case. Dr. Graboff, authored a draft expert report that criticized Dr. Meller, another Orthopedic Surgeon, for failing to prevent an infection during surgery. The plaintiff's firm (Colleran) utilized Dr. Graboff's draft report to secure a settlement for their client. After the settlement, Dr. Meller initiated proceedings against Dr. Graboff with the AAOS for violations of its "standards of professionalism." The AAOS suspended Dr. Graboff for 2 years and publicized the disciplinary action. Having been ousted from the leading professional certifying board for Orthopedic Surgeons, Dr. Graboff's credibility as an expert was effectively destroyed. Accordingly, Dr. Graboff sued the Colleran firm and the AAOS claiming that their joint conduct damaged his reputation and caused economic harm. The jury agreed and found the AAOS acted improperly for disciplining him for authoring a draft report. He was awarded $380,000 in damages and can now accurately state that he won a lawsuit against the AAOS for improperly suspending him.
Both of these cases demonstrate that there is a great deal of "behind the scenes" activity going on to persuade or discourage potential experts from participating in medical negligence matters. Given Newton's Third Law of Motion, which applies with equal force in litigation, every action creates an opposite and equal reaction. Therefore, as extrajudicial efforts increase to discourage medical experts from testifying in certain cases, we can expect equal efforts to respond to that conduct. These instances suggest that this conduct will not go unanswered.
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