An orthopedic surgeon who won a $392,000 verdict against the law firm that used what he claimed was an unfinished expert report and the medical professional organization that subsequently suspended him, has sued the doctors’ association for refusing to remove from its website an article detailing the suspension proceedings.

In a complaint filed September 26 in the U.S. District Court for the Eastern District of Pennsylvania, plaintiff Dr. Steven R. Graboff alleged that despite the jury’s finding that the article constituted a false-light invasion of privacy, the defendants, the American Association of Orthopaedic Surgeons and the American Academy of Orthopaedic Surgeons — collectively referred to as the AAOS — have refused to remove it from its website, demonstrating “a willful and deliberate disregard” for the court’s judgment.

The complaint in Graboff v. American Association of Orthopaedic Surgeons claims the AAOS has been asked numerous times to remove the article.

At trial, Graboff said in the complaint, the chief executive officer of the AAOS admitted during cross-examination that the sanctions against Graboff had expired but said she would not take the story off of the website.

“When asked why, she said that the information was of educational benefit to the AAOS members,” the complaint alleges. “She did not explain why, given the alleged benefit to AAOS members, the story was made available to more than just AAOS members via the publicly-accessible portion of the AAOS website.”

On June 26, according to the complaint, Graboff’s counsel sent a letter to counsel for the AAOS requesting that the article be removed but never received a response.

In addition to a declaratory judgment ordering the AAOS to comply, Graboff is now seeking punitive damages, attorney fees and court costs.

According to court documents in the original case, Graboff v. Colleran Firm, Graboff was hired by attorney Francis T. Colleran of the Colleran Firm in Philadelphia to serve as an expert witness in a medical malpractice case captioned Jones v. Meller in which the plaintiff, a 66-year-old diabetic, blamed two doctors for failing to prevent infections that ultimately required an above-the-knee amputation.

In his draft report, Graboff faulted two doctors — Alan Hibberd and Menachem Meller — for failing to recognize that wires installed in Paul Jones’ leg during a surgery were harboring a persistent infection and should have been removed, according to court papers.

But Graboff claimed that he cautioned Colleran that his report was preliminary and that he needed to see more of the medical documentation, including radiology reports, before rendering his final opinion, court papers said.

Graboff’s suit, filed April 16, 2010, alleged Colleran ignored those warnings and, without notifying Graboff, “whited out” the words “draft report” in order to use the document in a settlement conference.

Colleran secured a settlement for Jones, according to court papers, but Graboff’s suit alleged that Colleran’s use of the draft report triggered new problems when Graboff received a letter from the AAOS that said Meller had initiated proceedings against Graboff for violations of its “standards of professionalism.”

In hearings before the AAOS, Graboff claimed he was thwarted in his attempts to present a complete defense in which he would have explained the report was merely a draft and had been misused and altered by Colleran, according to court papers.

But the AAOS refused to accept some of Graboff’s evidence, the suit alleged, and ultimately suspended Graboff for two years and published news of the suspension in its newsletter, AAOS Now.

Graboff’s suit alleged breach of contract on the part of Colleran, his firm and the AAOS, as well as defamation on the part of the AAOS.

The AAOS argued in court papers that Graboff did not assert the defense that his expert report was only a draft until about six weeks before the AAOS Committee on Professionalism’s hearing regarding Meller’s grievance took place.

Colleran and his firm also alleged in court documents that Graboff made no mention of this defense in his initial written response to Meller’s grievance with the AAOS.

“It was not until five months after receipt of Dr. Meller’s grievance, and three months after the submission of Dr. Graboff’s written response to the AAOS that Dr. Graboff contacted the AAOS by letter dated September 18, 2008, and pointed out that the words ‘draft report’ had been removed from the first page of his December 5, 2007, report,” Colleran and his firm said in court papers. “That being said, even in his supplemental submission to the AAOS, he did not recant the conclusions in the December 2007 report criticizing Dr. Meller.”

The AAOS said in court papers that the committee questioned both Meller and Graboff during its hearing and that Graboff gave conflicting testimony.

“Although Dr. Graboff told the committee that his report was only a ‘draft,’ and that attorney Colleran had removed the words ‘draft report,’ Dr. Graboff nonetheless initially stood by his opinion that Dr. Meller was negligent and had violated the standard of care,” the AAOS said in court papers. “During questioning, however, Dr. Graboff contradicted himself and admitted that he had not previously reviewed the X-rays or CT-scan films, but now that he had seen them at the hearing, he no longer believed that Dr. Meller was negligent or violated the standard of care.”

The AAOS also said in court papers that, following the hearing, the committee found that Graboff had committed a number of professional violations, including providing false expert testimony, failing to give fair and impartial expert testimony, failing to consider accepted standards when evaluating Meller’s care and improperly condemning Meller’s performance.

Graboff alleged in court papers that after the AAOS published news of his suspension on the Internet, his “credibility as an expert was destroyed.”

According to court papers, Graboff lost existing contracts to serve as an expert witness, stopped receiving referrals from three insurers and was threatened with legal action by an attorney in another personal injury case who believed Graboff’s suspension had caused him to lose the case.

Ultimately, on April 27, the federal jury entered separate judgments of $196,000 each against the AAOS and the Colleran Firm, according to court records.

Graboff’s attorney, Clifford Haines of Haines & Associates in Philadelphia, said he and his client believe AAOS has exhibited a “defiant attitude” toward the jury’s verdict and the court’s judgment.

“At trial we asked them to take [the article] down and tried to determine why they wouldn’t and got no explanation other than that they wouldn’t,” Haines said.

Reached last Thursday, Daniel E. Rhynhart of Blank Rome in Philadelphia, who represented the AAOS in the underlying case, said his firm was about to enter an appearance in this matter on behalf of the AAOS.

Rhynhart said the AAOS currently has post-trial motions pending in the underlying case so the $196,000 judgment is not final. 
Rhynhart added that Graboff never sought injunctive relief in the underlying case to have the article removed from the AAOS website and in fact sought future damages, which the jury did not award.

Rhynhart said last Thursday that he and his firm were still analyzing the complaint and planned to file a response shortly.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.