When "Peer Review" Has Ulterior Motives

A federal judge this week upheld a jury verdict against the American Academy of Orthopedic Surgeons, finding sufficient evidence for the jury's decision that the AAOS acted with "reckless disregard for the truth" in publicizing its discipline of an orthopedic surgeon who had testified that another surgeon had committed malpractice.

The decision was written by U.S. District Judge Joel Slomsky, who was nominated to the federal bench by George W. Bush and sits in Philadelphia. Read the judge's decision against the orthopedic surgeons' society here.

The surgeon who successfully sued the AAOS is Steven Graboff, MD, whom the AAOS suspended for two years after he testified against an AAOS member. The jury found that the AAOS report about its disciplinary action cast Dr. Graboff in a "false light" because of various errors. The AAOS report remains on its publicly accessible website.

The AAOS is one of a number of doctor organizations with "peer review" programs for reviewing expert testimony against members. The programs exercise vast economic power over the members' testifying activities, as the court found. Responding to an argument from the orthopedic surgeon group that the expert witness had not shown enough economic harm from its slam of him, the judge wrote:

The AAOS is well aware of its clout in the profession of orthopaedic surgeons and created its compliance program and standards to control the occupation of its members as experts.16 It is also aware that its enforcement program and standards would affect the income of doctors because the loss of AAOS accreditation has a substantial impact on the ability of an expert to work in that industry. Further, the presence of the standards alone, however noble they are as a mission statement, can have a chilling effect on orthopaedic surgeons who serve as expert witnesses against other orthopaedic surgeons.

The ostensible goal of these expert witness "review" programs is "truth" in testifying, but the judge's decision summarizes the evidence at trial supporting the jury's verdict that AAOS did not run an unbiased review system.

The bias started with the doctor the orthopedic surgeons picked to set up and run its testimony review program: Dr. Peter Mandell, an orthopedic surgeon who had stopped treating patients and focused his practice on testifying for insurance companies in workers' compensation cases (i.e., testifying against patients).

Dr. Mandell, as Judge Slomsky found, is the head of the AAOS Committee on Professionalism, the first body to hear charges that an orthopedic surgeon has testified in violation of the AAOS expert witness standards.

(By the way, only members of the AAOS are eligible to start complaint proceedings against an orthopedic witness; that means that any patient who feels aggrieved by a surgeon's testimony against the patient -- like Dr. Mandell's testimony against a worker's comp claimant -- has no recourse.)

Dr. Mandell is also head of the AAOS Council on Advocacy, which lobbies in Washington for "tort reform" to curb malpractice lawsuits.

Hmm. Coincidence?

The expert witness review program, Dr. Mandell testified (with admirable candor) in the Graboff lawsuit, came about because orthopedic surgeons were upset about high jury verdicts against orthopedists in malpractice cases.

Any scientist knows that biased decision makers produce biased outcomes. That's why medical research usually requires "double blinded" studies so that doctors studying a new drug or device don't subconsciously tilt the results one way or the other from knowing which way something should come out.

But in this case, the old doctors' joke may hold true. Q: What's the definition of a double-blind study? A: Two orthopedic surgeons examining the same patient.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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