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Professional Conduct Program (Continued from page 22)

expert’s “primary profession” does not constitute an important economic inter- est.22

As to Dr. Austin’s claim that the AANS’s one-sided approach to disciplining its membership constitutes a violation of public policy and an interference with the cause of civil justice, Judge Posner ac- knowledged the “asymmetry” of AANS’ efforts, but called for more of the same.

There is no basis for Austin’s claim that the Association entertains only com- plaints against members who testify on behalf of malpractice plaintiffs. What is true is that to date all complaints (but there have been very few) have been against such members; but the reason is at once obvious and innocent. If a member of the Association is sued for malpractice and another member gives testimony for the plaintiff that the de- fendant believes is irresponsible, it is natural for the defendant to complain to the Association; a fellow member has irresponsibly labeled him negligent. If a member of the Association who testi- fies for a plaintiff happens to believe that the defendant’s expert witness was irresponsible, he is much less likely to complain, because that expert (and fel- low member of the Association) has not accused him of negligence or harmed him in his practice or forced him to stand trial or gotten him into trouble with his liability insurer. . . . [T]his kind of professional self-regulation rather furthers than impedes the cause of justice.23

Really? Whose justice? What about the plaintiff whose case is lost because of the “irresponsible” testimony of a defense ex- pert who is not reported to the AANS by

23253 F.3d at 972.

plaintiff ’s expert because, after all, plaintiff’s expert is not personally invested in the case? On what basis could Judge Posner possible assume that the AANS would ever sanction one of its own for testifying in support of a fellow neuro- surgeon, no matter how outrageous the testimony may be? Lost in Judge Posner’s strident language is any consideration for patients who have suffered acts of medi- cal negligence and the impact the completely one-sided nature of the pro- ceedings of the AANS Professional Conduct Committee have on the patient’s ability to pursue the cause of justice. Perhaps, just to underscore his partiality, Judge Posner went on to conclude that, based on his expert testimony, Dr. Austin was also “probably a poor physician.”24 In the Austin case, Judge Posner appar- ently so disliked Dr. Austin and his testimony that he ranged far beyond the limits of the issues before him. In doing so, he assumed the role of medical expert himself and missed the real point under- lying the case. Regardless of Dr. Austin and the details of his expert testimony, the question remains: what is to become of our system of civil justice if a trade orga- nization of physicians is able to coerce its members to refuse to testify for plaintiffs in cases that cannot be sustained without such testimony? The intended result and the impact of the AANS Professional Conduct Program were summed up rather succinctly in April, 2005 by Russell Pelton, AANS general counsel:

Although it is difficult to measure the effectiveness of such a program, several prominent plaintiffs’ lawyers have given it a backhanded compliment. They’ve

24253 F.3d at 974. 25 fline4.htm American Association of Ortho- pedic Surgeons: Online Bulletin: April, 2005: Pelton, Russell M., J.D.: The AANS Professional Conduct Program.

said that, as a result of the AANS pro- gram, it is harder to find a neurosurgeon who will serve as a plaintiff’s expert in a professional liability case than in any other specialty.25 Since the Austin decision, no other challenge to the AANS program has been brought.

In fact, a suit by Dr. Gary

Lustgarten, a Florida neurosurgeon, was dropped after it was transferred to the United States District Court for the Northern District of Illinois on venue grounds because the AANS is based in Chicago. Given the Seventh Circuit’s decision in Austin, Dr. Lustgarten real- ized that his suit was doomed.’26 The long term chilling effect that the AANS Professional Conduct Program will have on our system of civil justice remains to be seen. The fact that the quote above concerning the difficulty plaintiffs are having in procuring neurosurgical review comes from an online publication of the American Association of Orthopedic Sur- geons is an indication that the efforts of the AANS are being emulated by other physicians’ trade groups. For now, pa- tients seeking compensation for injuries caused by neurosurgical negligence will have to rely on those neurosurgeons who refuse to be intimidated by the AANS’ threat of sanction for doing what they believe to be right, and trust that judges and juries will see the AANS Professional Conduct Program for what it is — a concerted effort by a trade guild to pro- tect the financial interests of its members by discouraging expert testimony on be- half of plaintiffs in medical malpractice actions.

26 ibr ar y/ Article.aspx?ArticleId=9916 American Asso- ciation of Neurological Surgeons: Bulletin: Spring 2002 (Volume11, Issue 1): Pelton, Russell M., J.D.: Professing Professional Conduct: AANS Raises the Bar for Expert Testimony

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P.O. Box 1339 Rockville, Maryland 20849 (301) 984-0600 Fax: (301) 984-0719 Email: 24 Trial Reporter Spring 2006

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