Medical Society Advocacy
Outcome: Very favorable
The issue in this case was whether a medical society could discipline one of its members for testifying falsely as an expert witness.
The AMA supports the right of medical associations to set standards for honest expert testimony by physicians and to sanction those members who violate these standards.
The American Association of Neurological Surgeons (AANS) had suspended Dr. Austin from membership for six months because, it found, he had testified against another physician in a suit alleging professional liability without a reasonable basis for his testimony. His testimony violated the AANS code of ethics.
Dr. Austin sued AANS, and the trial court held against him. The Seventh Circuit Court of Appeals affirmed the lower court’s ruling, holding that, since AANS had accorded Dr. Austin due process and had acted in good faith, he had no grounds for complaint. There is nothing wrong, it said, in having a professional association sanction one of its members for irresponsible testimony. In fact, professional self-regulation furthers, rather than impedes, the cause of justice. Dr. Austin’s testimony at trial was a type of medical service, and the poor quality of that medical testimony probably reflected the generally poor quality of his medical judgment. Moreover, because membership in AANS is not a precondition to the practice of neurosurgery, his membership did not implicate an important economic interest that might otherwise justify judicial intervention.
Litigation Center involvement
The Litigation Center filed an amicus curiae brief to support AANS. The brief argued that a physician’s expert medical testimony is an aspect of medical practice. The AANS ethical code was therefore a legitimate, good faith guideline for proper professional conduct. The brief also argued that AANS had a constitutionally protected right to choose those persons with whom its members would associate.
Outcome: Somewhat unfavorable
The primary issues in this case are (a) whether members of medical societies should be able to consult with those societies if they feel they have been harmed by false expert witness testimony and (b) whether medical societies should be able to investigate physicians who have been accused of giving false expert witness testimony, for the purpose of taking appropriate action.
The AMA supports the right of physicians to consult with their medical societies when they believe they have been harmed by another physician’s false expert witness testimony. The AMA also supports the right of medical societies’ peer review programs to investigate complaints of false expert witness testimony by physicians.
The case arose out of expert witness testimony that Dr. John Fullerton had given for the plaintiff in a professional liability suit against three physicians. The court found that the physicians were not liable. Subsequently, these physicians complained to the Florida Medical Association (“FMA”) that Dr. Fullerton's testimony fell "below reasonable standards" and had been provided "for the sole purpose of propagating a frivolous lawsuit for financial gain." They asked FMA to review the testimony under its expert witness peer review program and determine whether it comported with professional standards. They further asked that, if the testimony was found to be substandard, FMA submit its findings to the Florida Board of Medicine for proper disciplinary action.
In response, Dr. Fullerton sued FMA and the three physicians in the Circuit Court of Leon County, Florida. He stated that the defendants-physicians’ assertions were not true and contended that the FMA expert witness peer review program was “intimidating, hindering, and deterring persons, including Plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice.” He did not allege, however, that the defendants-physicians' letter of complaint to FMA had been sent in bad faith or that they lacked a reasonable basis for their belief that Dr. Fullerton had testified "below reasonable standards" and in support of a frivolous lawsuit.
The trial court dismissed the lawsuit for failure to state a cause of action but granted Dr. Fullerton the right to file an amended complaint. Dr. Fullerton then filed an amended complaint against only FMA.
A final and appealable judgment was entered in favor of the individual physicians, which Dr. Fullerton appealed. The District Court of Appeal reversed the trial court, finding that neither FMA nor the three physicians were immunized from liability by the state peer review law or the Federal Health Care Quality Improvement Act. In this ruling, the court did not discuss whether the three physicians’ complaint was a non-actionable statement of opinion or whether they were protected under state and federal constitutional guarantees of free expression and free association.
After FMA and the three physicians asked the District Court of Appeal to reconsider its decision, the court entered a revised ruling, which largely restated the court’s earlier decision, but also specified that FMA and the physician defendants would be allowed, on remand to the trial court, to argue a defense based on protections provided by the constitution and case law precedent.
Litigation Center involvement
The Litigation Center contributed to the defense costs of the defendant physicians and filed a brief as amicus curiae to support the individual physician defendants in Dr. Fullerton’s appeal.
332 F.3d 600 (9th Cir. 2003)
Outcome: Very favorable
Also under Antitrust
The issue in this case was whether advocacy efforts by the Hawaii Medical Association and other organizations constituted an antitrust violation.
The AMA supports vigorous advocacy efforts by medical associations and others directed at improving access to healthcare, the physician-patient relationship and fair compensation to physicians.
The Hawaii Medical Association (“HMA”) and one of its former presidents, along with two other organizations and various other individuals, were sued under the Sherman Antitrust Act. The plaintiffs alleged that the defendants had organized a physician boycott of two managed care organizations. HMA contended that it was simply advising its members of certain problems with the proposed provider contracts without an agreement among its members to act in concert. HMA maintained that, if the plaintiffs had been able to establish their business in Hawaii, this would have increased competition among purchasers of physicians’ services. Thus, HMA had no reason to participate in a boycott.
The district court entered summary judgment for defendants on all counts. The plaintiffs appealed. On June 6, 2003, the Ninth Circuit affirmed the decision for the defendants.
Litigation Center involvement
The Litigation Center helped HMA clarify and secure its insurance coverage. The Litigation Center also helped HMA negotiate a fee agreement with its defense attorneys. Moreover, the Litigation Center filed an amicus curiae brief in the Ninth Circuit to support HMA. The brief argued that professional associations, such as HMA, have a legitimate right to share information and opinions on matters of common interest, including economic issues. The brief also argued that sharing information and opinions furthers, rather than harms, competition. Additionally, a reversal of the summary judgment would seriously undermine the valuable and sociably desirable advocacy function that associations provide for their members.
Also under Peer review
The issue in this case was whether medical societies should have the right to determine their members' qualifications through good faith peer review proceedings.
The AMA supports peer review proceedings brought in good faith and conducted under proper procedures.
Dr. Emmanuel E. Ubinas-Brache had been a member of the Dallas County Medical Society ("DCMS"), an affiliate of the Texas Medical Association ("TMA"). Each DCMS member agreed to be bound by the AMA's Principles of Medical Ethics and by the DCMS disciplinary procedures. The DCMS bylaws stated that disciplinary actions would be carried out in accordance with the TMA Disciplinary Procedures Manual. The TMA manual provided that hearings would be conducted through a "fair and good faith proceeding."
DCMS received three complaints of medical negligence against Dr. Ubinas from his patients, one of whom was a physician and a family friend. Following an investigation, the complaints were referred to three separate levels of review within DCMS. One of the reviewing bodies, the DCMS Board of Censors, recommended that Dr. Ubinas be expelled from DCMS and TMA because he had provided services to patients that were unnecessary and inconsistent with the clinical findings, had failed to deal honestly with his patients, and had engaged in deceptive practices. Dr. Ubinas appealed this recommendation to the DCMS Board of Directors. After a ten-hour hearing in which expert evidence was presented, witnesses were examined and cross-examined, and attorneys' arguments were made, the Board of Directors voted to expel Dr. Ubinas from DCMS.
Dr. Ubinas then appealed to the TMA Board of Councilors, which affirmed the expulsion. He next appealed to the AMA Council on Ethical and Judicial Affairs, which also affirmed the expulsion.
Following exhaustion of these appeals, Dr. Ubinas sued DCMS and TMA in Texas state court, alleging breach of contract and a denial of due process under the Texas Constitution. He contended that the proceedings were not kept confidential, that the evidence was not weighed properly, and that various persons involved in the prosecutorial function were also involved in the deliberative process. Dr. Ubinas sought only injunctive relief, but the trial court referred the matter to a jury. The jury found that Dr. Ubinas had been irreparably injured and that both DCMS and TMA had failed to provide him with "fundamental fairness and a fair and good faith proceeding." The trial court enjoined DCMS and TMA from expelling Dr. Ubinas or from reporting their action to the National Practitioner Data Bank. Both sides moved for an award of attorneys' fees, but the court denied those motions.
DCMS and TMA each appealed to the Texas Court of Appeals. The Court of Appeals found that Dr. Ubinas had neither alleged nor proven malice on the part of DCMS, as required under the applicable Texas statute. It reversed the judgment and remanded the case to the trial court for determination of whether attorneys' fees should be entered against Dr. Ubinas.
Following the remand, DCMS argued that Dr. Ubinas had brought a frivolous lawsuit. The court entered final judgment in favor of DCMS and TMA in the amount of $629,882.43 for attorneys' fees and defense costs. Dr. Ubinas appealed.
The Texas Court of Appeals reversed the fee award, finding that although Dr. Ubinas had lost the case, his suit had not been frivolous. On February 17, 2009, the Texas Supreme Court refused to hear a requested appeal from the Court of Appeals.
Litigation Center/AMA involvement
The Litigation Center contributed toward the fees of the DCMS/TMA expert witnesses. The AMA itself paid for half of the total legal expenses.