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Professional Conduct Program (Continued from page 20)

a multitude of pro tort reform publica- tions and brochures and links to tort reform advocacy groups.13 On several occasions, legal challenges

have been raised to the actions of the AANS Professional Conduct Committee. The first such challenge was raised in 1991 by Dr. George Jacobs, a New Jersey neu- rosurgeon.

reminded by defense counsel that his tes- timony may bring about a charge of “unprofessional conduct” before the AANS.16

The message is clear; After AANS charges were

leveled against him, Dr. Jacobs sought to enjoin the process. In a series of unre- ported opinions, the appellate courts of New Jersey dismissed Dr. Jacob’s action, finding that the AANS procedures af- forded him appropriate due process.’14 According to Russell M. Pelton, AANS’ general counsel, in an article published on the AANS’ website, “although the Jacobs decision was not widely publicized at the national level, it became fairly well known in the neurosurgical commu- nity.”15

This shot across the bow of

neurosurgeons who testify against their brethren was not without impact. In his article, Mr. Pelton followed his comment above with an anecdote about a neuro- surgeon who had testified for a plaintiff at deposition and then withdrew his tes- timony when, after his deposition, he was


Jacobs v. American Ass’n. of Neurological Surgeons, No. A-2894-91T5 (N.J. Super. Ct. App. Div. Nov. 18, 1992).

15 ibr ar y/ Article.aspx?ArticleId=9916 American Association of Neurological Sur- geons: Bulletin: Spring 2002 (Volume11, Issue 1): Pelton, Russell M., J.D.: Profess- ing Professional Conduct: AANS Raises the Bar for Expert Testimony.


neurosurgeons testifying for plaintiffs in medical negligence actions do so at their professional peril. A few years later, a much more highly publicized challenge to the AANS profes- sional conduct program was mounted by Dr. Donald Austin, a Detroit, Michigan neurosurgeon.

In 1995, Dr. Austin’s

membership in the AANS was suspended for six months for testifying for a plain- tiff in a medical malpractice action that the “majority of neurosurgeons” would agree with him that injury to the plaintiff’s recurrent laryngeal nerve could not have occurred during the course of a cervical fusion surgery in the absence of negligence by the defendant neurosurgeon. After the Professional Conduct Committee’s decision was upheld by the Board of Di- rectors and the general membership, Dr. Austin filed suit in the United States Dis- trict Court for the Northern District of Illinois alleging that AANS had violated his due process rights, damaged his abil- ity to generate income as an expert witness and violated “public policy” by adopting a program that discouraged neurosurgeons from testifying for plain- tiffs in medical malpractice actions.’17


granting AANS’ motion for summary judgment, the court recognized that Dr. Austin’s economic interests had been ad- versely impacted, but held that he had not been deprived of due process. As to Dr. Austin’s public policy argument, the court


Austin v. Am. Ass’n. of Neurological Sur- geons, 120 F. Supp. 2d 1151 (N.D. Ill. 2000).

18120 F. Supp. 2d at 1155.

held that Illinois law did not grant the “court power over the disciplinary actions of a private association merely because they violate such a public policy.”’18 Dr. Austin appealed his case to the

United States Court of Appeals for the Seventh Circuit, where, in a blistering opinion authored by Judge Richard Posner, the lower court’s ruling was af- firmed.19

Judge Posner’s opinion is rather

incredible. In upholding the lower court, he traveled far beyond the appellate record before him in conducting his own internet research on the medical issues underlying Dr. Austin’s testimony in the case at is- sue. Judge Posner, in an opinion in which he observed that “[j]udges are not experts in any field but law,”20

concluded on the

basis of his own internet research and reading of medical journal articles cited by Dr. Austin that he had testified “irre- sponsibly.”21

Judge Posner held that Dr. Austin had failed to show that an “important eco- nomic interest” was at stake.


recognizing that Dr. Austin’s income from expert testimony had fallen by $143,000 after the AANS suspension, Judge Posner held that the loss’represented “merely as it were Dr. Austin’s moonlighting in- come.” Thus, under Judge Posner’s interpretation of Illinois law, loss of in- come from sources other than from the

(Continued on page 24) 19

Austin v. Am. Ass’n. of Neurological Sur- geons, 253 F.3d 967 (7th Cir. 2002). 20253 F.3d at 972. 21253 F.3d at 971. 22253 F.3d at 971.

Thus Judge Posner elevated

himself to the status of “expert on ex- perts.” In disagreement with the court below,

Harry A. Milman, Ph.D.

Consulting in Toxicology, Carcinogenesis, Pharmacology, and Pharmacy Standard of Care

14317 Bauer Drive Rockville, MD 20853

Phone: 301-871-6715 Fax: 301-871-5586



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Spring 2006

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