Brandner v. American Academy of Orthopaedic Surgeons et al
Filing
95
MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 9/27/2012. Mailed notice (cjg, )
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK BRANDNER, M.D.,
Plaintiff,
v.
AMERICAN ACADEMY OF
ORTHOPAEDIC SURGEONS and
AMERICAN ASSOCIATION
OF ORTHOPAEDIC SURGEONS,
Defendants.
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10 C 8161
Judge Ronald A. Guzmán
MEMORANDUM OPINION AND ORDER
Patrick Brandner sued the American Academy of Orthopaedic Surgeons (“Academy”) and
its interrelated and parallel organization, the American Association of Orthopaedic Surgeons
(“Association”) (collectively, the “AAOS”), for failing to follow their own bylaws, acting in bad
faith and violating his due process rights when they suspended him from membership based on
certain expert testimony he provided during a medical malpractice case.
Brandner contends that the AAOS’s sole intent was to punish and make an example of
him for offering expert testimony against another orthopedic surgeon who was a fellow member
of the AAOS. The parties have cross-moved for summary judgment. For the reasons stated
below, Brandner’s motion is denied and AAOS’s motion is granted.
I.
Facts
As an initial matter, the Court notes that its resolution of the parties’ motions was made
vastly more difficult by Brandner’s failure to abide by Local Rule 56.1(a), which requires a
moving party to set forth “short numbered paragraphs” in its statement of facts. Almost all of
Brandner’s statements violate that rule and, indeed, some statements of fact span more than one
single-space page. Brandner’s Statement No. 53 is approximately seventeen (lengthy) sentences
long. The Local Rules contain a limit on the number of statements of fact for a reason. As noted
in the Committee Comment for Local Rule 56.1:
Local Rule 56.1 is revised to set forth limits on the number of statements of fact
that may be offered in connection with a summary judgment motion. The judges of
this Court have observed that parties frequently include in their LR56.1 statements
of facts that are unnecessary to the motion and/or are disputed. The judges'
observation is that in the vast majority of cases, a limit of 80 asserted statements of
fact and 40 assertions of additional statements of fact will be more than sufficient
to determine whether the case is appropriate for summary judgment. The number
of statements of fact has been set in light of the requirement of section (a)(3),
which requires that only “material facts” be set down. A party may seek leave to
file more asserted statements of fact or additional fact, upon a showing that the
complexity of the case requires a relaxation of the 80 or 40 statement limit.
Local Rule 56.1. Brandner’s statement of facts clearly violates the spirit of this rule. The Court
has attempted to wade through the facts to include only the material ones. To the extent a fact is
not discussed in the Fact section of this Memorandum and Order, it will be addressed in the
Analysis section, if necessary. Due to Brandner’s blatant disregard for the Local Rules, the Court
will not look with favor on any motion to reconsider based on the Court’s purported failure to
appreciate the relevance of a particular fact.
The Court further notes that its review of the facts was complicated by Brandner’s (and to
a certain extent, AAOS’s) argument of legal issues in the statements of fact. This is improper.
Camilotes v. Resurrection Health Care Corp., No. 10 C 366, 2012 WL 2905528, at *1 (N.D. Ill.
Jul. 16, 2012) (“The purpose of Local Rule 56.1 statements is to identify the relevant admissible
evidence supporting the material facts, not to make factual or legal arguments.”). Again, the
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Court has attempted to eliminate from its statement of the background facts any legal argument
inserted by the parties.
Underlying Case
Brandner is an orthopedic surgeon who lives in Nevada. (Pl.’s LR 56.1(a) Stmt., Dkt. #
81, ¶ 1.) Due to a back injury which limited his ability to perform surgery, Brandner began in
1995 to provide independent medical examinations, record reviews, and expert testimony to
supplement his income. (Id. ¶ 11.) The AAOS is comprised of interrelated not-for-profit
corporations organized under the laws of Illinois, which have their principal place of business in
Rosemont, Illinois. (Id. ¶ 2.) Brandner has been a member of the Academy for 25 years. (Id. ¶
5.) Pursuant to the bylaws of the Academy, all members of the Academy are members of the
Association. (Id.)
In October 2004, Brandner was contacted to perform a records review and provide
possible expert testimony in a medical malpractice case in Arizona. (Id. ¶ 12) A minor patient
was suing Dr. Kipling Sharpe for nerve damage that occurred during a surgery, a proximal tibial
osteotomy, he performed on the patient’s leg. (Id. ¶ 13.) After reviewing the records, Brandner
concluded that the evidence of malpractice as to Dr. Sharpe was “doubtful.” (Id. ¶ 14.) He
indicated, however, that the absence of a notation documenting a discussion between Sharpe and
the patient about the risk of damage to the peroneal nerve and potential foot drop was unusual.
(Id.) Brandner indicated that such a discussion was required to satisfy the standard of care for
informed consent for a proximal tibial osteotomy. (Id.)
The patient’s attorney said it was his understanding that neither the patient nor his mother
knew prior to surgery of the risk of damage to the peroneal nerve or the possibility of foot drop.
(Id. ¶ 15.) Sharpe, however, testified at his deposition that he discussed these risks with the
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patient on two occasions prior to the surgery because he was particularly worried about the risks.
(Defs.’ Resp. Pl.’s LR 56.1(a) Stmt., Dkt. # 87, ¶ 15; Sharpe Dep., Defs.’ Ex. 10 at 11-12.)
Brandner stated that he would be willing to act as an expert witness in the case, but would
only testify that the standard of care for informed consent in the context of the relevant surgery
required a discussion of the specific risks associated with damage to the peroneal nerve and the
potential of foot drop and that the medical records failed to indicate that a discussion regarding
those particular risks had occurred. (Pl.’s LR 56.1(a) Stmt., Dkt. # 81, ¶ 16.)
As discussed more fully below, Sharpe was not initially named in the patient’s lawsuit and
both the patient and his mother testified at their January 29, 2004 depositions that Sharpe had
discussed with them prior to surgery the risks involved in the surgery, including the possibility of
foot drop. (Id. ¶¶ 21, 24, 25.) Sharpe was deposed in the underlying lawsuit prior to his being
named as a defendant and he testified during the deposition that he was concerned about the risk
of peroneal nerve injury and had specifically discussed it with the patient prior to surgery. (Id. ¶
26.) The patient and his mother were deposed again after Brander had been retained by the
patient as an expert witness. (Id. ¶ 27.) In their June 2005 depositions and at trial, the patient
and his mother testified that Sharpe had not discussed prior to the surgery the risk of post-surgical
foot drop. (Id.)
On August 5, 2005, Brandner gave deposition testimony as an expert witness in the
malpractice action against Sharpe. (Id. ¶ 22.) Brandner testified that Sharpe’s conduct fell below
the standard of care if no discussion regarding the particular risks of damage to the peroneal
nerve and the potential for foot drop had occurred. (Pl.’s Ex. 10, Brandner Dep. at 21-23.) At
his deposition, Brandner agreed that while the patient and his mother testified at their depositions
that they had not been notified of the specific risks prior to surgery, Sharpe testified at his
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deposition that he had discussed the particular risks pre-surgery. (Pl.’s Rule 56.1(a) Stmt., Dkt. #
81, ¶ 22.) Brandner further indicated that he could not resolve the dispute as to who said what to
whom and when, but that it was an issue for the jury. (Id.)
On April 29, 2008, Brandner testified at trial as an expert witness in the action against
Sharpe. (Id. ¶ 23.) He testified that the standard of care for informed consent in the context of a
proximal tibial osteotomy required a discussion of the specific risks associated with damage to the
peroneal nerve and the potential of foot drop and that the medical records failed to indicate that a
pre-operative discussion regarding those particular risks had occurred. (Id.) Brandner admitted
that he could not testify as to whether Sharpe had actually discussed the risk of peroneal nerve
damage and the potential for foot drop prior to surgery. (Id.) Brandner also testified at trial when
asked about the January 2004 deposition testimony of the patient’s mother that Sharpe had
warned her of the risks prior to surgery, that the patient’s mother was referring to a post-surgical
rather than pre-operative discussion with Sharpe. (Defs.’ Resp. Pl.’s LR 56.1(a) Stmt., Dkt. # 87,
¶ 23.) The jury found in favor of Sharpe. (Id. ¶ 24.)
AAOS Grievance Procedures and Standards of Professionalism
In 2005, the AAOS established a Professional Compliance Program in response to
member requests. (Pl.’s Resp. Defs.’ LR 56.1(a) Stmt., Dkt. # 82, ¶ 9.) On April 18, 2005, the
AAOS adopted Standards of Professionalism (“SOP”) for Orthopaedic Expert Witness
Testimony. (Id. ¶ 13.) The SOPs must be followed by all AAOS fellows and members when
providing expert opinion services. (Id.) Article VIII of the AAOS Bylaws sets forth general
procedural mechanisms for the operation of the AAOS Professional Compliance Program. (Id. ¶
14.) In addition, the AAOS promulgated Professional Compliance Grievance Procedures
(“Grievance Procedures”), which are dated September 13, 2008 and which apply to Sharpe’s
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grievance against Brandner, which is discussed in detail below. (Id.)
The Grievance Procedures involve a multi-step process where at least two different groups
of AAOS fellows review the merits of a grievance before a final determination is made: the
Committee on Professionalism and the AAOS Board of Directors. (Id. ¶ 16.) In addition, parties
to a grievance may seek an appeal with the AAOS Judiciary Committee. (Id.)
Sharpe’s Grievance
After the malpractice case against Sharpe was over, he filed a bar complaint against the
patient’s attorney and a grievance report with the AAOS against Brandner. (Pl.’s LR 56.1(a)
Stmt., Dkt. # 81, ¶ 24.) The AAOS received Sharpe’s grievance against Brandner on October 21,
2008. (Id. ¶ 26.) Sharpe’s grievance letter stated as follows:
This was a case of peroneal nerve injury which occurred during a corrective
osteotomy . . . . It is well-documented in my chart that I discussed risks with the
patient and his parents including nerve injury on 2 separate visits. In depositions
taken prior to my being named in a lawsuit . . . both the patient and his mother
acknowledged that I discussed risks including the specific risk of peroneal nerve
[injury] . . . . Subsequently, the mother and son changed their story and sued me
for lack of informed consent. Their attorney hired Dr. Brandner as an expert
witness . . . . He testified in both his deposition and in court that I fell below the
standard of care in my preoperative care by failing to discuss the risk of peroneal
nerve injury.
(Id. ¶ 20.)
In his trial testimony, Brandner first asserted that he had no opinion on the “he-said, shesaid” dispute between Sharpe and his patient as to whether a pre-operative discussion of peroneal
nerve injury had occurred. (Id. ¶ 28.) However, when he was shown the January 2004 deposition
testimony of the patient’s mother that Sharpe “had warned us prior” to surgery of the risk of nerve
injury, Brandner testified as follows:
Q:
Have you ever been aware of that testimony?
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A:
I believe so. I can’t recall exactly, but again, it’s – the reason I’m saying I
can’t recall is because it strikes me, as this lady, knowing a list or a laundry
list of things, and not specifically addressing – it looks like she’s talking
about things that happened after the surgery and she understands it and she
mentions it. But, she doesn’t specifically define that she knew the nerve
could be stretched, before.
(Id. ¶ 28.)
Sharpe’s grievance alleged that Brandner violated: (1) Mandatory Standards Nos. 3 and 4
of the AAOS SOPs when he testified that the standard of care for informed consent in the context
of the relevant surgery required a discussion of the specific risks associated with damage to the
peroneal nerve and the potential of foot drop and that the medical records failed to indicate that a
discussion regarding those particular risks had occurred; (2) Mandatory Standard No. 6 when he
failed to adequately review the deposition testimony of the patient and his mother given in
January 2004 before agreeing to testify as an expert witness at trial; and (3) Mandatory Standards
Nos. 7 and 8 when he testified about the rate of nerve damage after a leg surgery like the one at
issue and that he had no “current relevant experience” with the procedure. (Id.)
The relevant Mandatory Standards state as follows:
Mandatory Standard No. 3: An orthopaedic expert witness shall evaluate the
medical condition and care provided in light of generally accepted standards at the
time, place and in the context of care delivered.
Mandatory Standard No. 4: An orthopaedic expert witness shall neither condemn
performance that falls within generally accepted practice standards nor endorse or
condone performance that falls outside these standards.
Mandatory Standard No. 6: An orthopaedic expert witness shall seek and review
all pertinent medical records related to a particular patient prior to rendering an
opinion on the medical or surgical management of the patient.
Mandatory Standard No. 7: An orthopaedic expert witness shall have knowledge
and experience about the standard of care and available scientific evidence for the
condition in question during the relevant time, place and in the context of medical
care provided and shall respond accurately to questions about the standards of care
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and available scientific evidence.
Mandatory Standard No. 8: An orthopaedic expert witness shall provide evidence
or testify only in matters in which he or she has relevant clinical experience and
knowledge in the areas of medicine that are the subject of the proceeding.
(Id. ¶ 31.)
On April 7, 2009, Brandner submitted a written response to the grievance noting that he
was at a disadvantage because all of the documents he had possessed which related to the case
had been returned to the patient’s attorney and he had been advised that the information was
irretrievable. (Defs.’ Resp. Pl.’s LR 56.1(a) Stmt., Dkt. # 87, ¶ 31.) Among other things,
Brandner emphasized the limited nature of his testimony. (Id.) Specifically, he stated in his
response to the grievance that he testified only that (1) the standard of care for the surgery
required a discussion of the risks of peroneal nerve injury and that (2) there was nothing in the
patient’s medical records indicating that such a discussion had occurred. (Id.)
Sharpe replied to Brandner’s response to the grievance, though no Grievance Procedure
addresses the filing of a reply. (Id. ¶ 32.) According to the defendants, Brandner was sent a copy
of the reply on September 18, 2009, several months after it was received by the AAOS. (Id.)
After reviewing Sharpe’s grievance report and the initial materials he submitted in
support, the AAOS requested additional materials from Sharpe, which is customary. (Pl.’s Resp.
Defs.’ LR 56.1(a) Stmt., Dkt. #82, ¶ 32.) Upon receipt of this additional information,
the AAOS Committee on Professionalism (“COP”) concluded that a prima facie case of
unprofessional conduct had been established and sent Brandner a letter advising him of its
conclusion and setting a hearing date on one of two days. (Pl.’s LR 56.1(a) Stmt., Dkt. #81, ¶
33.) After his request to postpone the hearing was rejected by Sharpe, Brandner had to
reschedule travel plans at significant cost in order to attend the hearing. (Id. ¶ 35.)
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Prior to the hearing, Brandner submitted a witness list and grievance material in which he
again advised the AAOS that he was not in possession of any of the materials related to the case.
(Id. ¶ 36.) He also submitted several letters from other doctors agreeing with his testimony that
the standard of care required informed consent with respect to the specific risks already discussed.
Brandner did not receive Sharpe’s reply to Brandner’s response to the grievance until after his
COP hearing materials had been submitted. (Id. ¶ 37.)
Both Brandner and Sharpe attended the grievance hearing on October 2, 2009. (Pl.’s
Resp. Defs.’ LR 56.1(a) Stmt., Dkt. #82, ¶ 43.) Both parties were given thirty minutes to make a
presentation and both were afforded the opportunity to ask questions of the other side. (Id.)
Brandner made a presentation on his own behalf, did not ask any questions of Sharpe and elected
not to retain counsel to represent him at the hearing. (Id. ¶ 44.)
The COP issued its Report and Recommendation on December 14, 2009, recommending
that Brandner be suspended from the AAOS for one year based on “unprofessional conduct in the
performance of expert witness testimony.” (Id. ¶ 43.) The COP hearing panel concluded that
Brandner had violated Mandatory Standard Nos. 3, 4 and 7. (Id.; Defs.’ Resp. Pl.’s LR 56.1(a)
Stmt., Dkt. # 87, ¶ 43.) With respect to Mandatory Standard Nos. 3 and 4, the COP hearing panel
concluded that:
[t]he record shows that informed consent was given. The COP found that
the deposition transcripts reflected that both the plaintiff and his mother
had an understanding about the specific possibility and causation of foot
drop. The COP believed that, in this regard, Dr. Brandner condemned
performance that falls within generally accepted practice standards in
obtaining informed consent.
(Pl.’s LR 56.1(a) Stmt., Dkt. # 81, ¶ 44; Pl.’s Ex. 30, Dkt. #81-3, at 9.)
Brandner’s counsel timely appealed the COP hearing panel’s ruling to the Judiciary
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Committee. (Pl.’s LR 56.1(a) Stmt., Dkt. # 81, ¶ 46.) In his appeal, Brandner asserted that the
COP hearing panel had ignored numerous AAOS Grievance Procedures and argued that this
failure violated his due process rights. (Id.) As to the violation of Mandatory Standard Nos. 3
and 4, Brandner argued that under the original SOPs, he had no obligation to review the patient’s
deposition transcripts, only the pertinent medical records. (Id.) He further argued that without
the June 2005 transcripts, which Sharpe failed to provide to the COP hearing panel, it had no
basis on which to find that the “deposition transcripts reflected that both the plaintiff and his
mother had an understanding about the specific causation and possibility of a foot drop.” (Id.)
Prior to the hearing before the appellate Judiciary Committee, Brandner obtained and
forwarded to the Committee the following transcripts: (1) the June 2005 deposition transcripts of
the patient and mother; (2) his own trial testimony; and (3) the mother’s trial testimony. (Id. ¶
48.)
The appeal hearing was held on March 12, 2010 and each side was given ten minutes to
make a statement to the Judiciary Committee. (Pl.’s LR 56.1(a) Stmt., Dkt # 81, ¶ 50.) Sharpe’s
attorney argued that the transcripts from the subsequent depositions of the patient and the mother
(in which they changed their testimony to say that Sharpe did not discuss the risks with them)
were irrelevant to the grievance because the real point of the grievance was that Brandner should
not have agreed to act as an expert in light of the testimony by the patient and his mother in their
initial depositions that Sharpe had discussed the specific risks associated with the surgery. (Id.)
On April 21, 2012, the Judiciary Committee issued its Report and Recommendation in which it
recommended that Brandner be suspended from the AAOS for one year. (Id. ¶ 53.)
The AAOS Grievance Procedures state that the AAOS Board of Directors adjudicates all
recommendations received from the COP hearing panel and the Judiciary Committee at the next
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scheduled meeting of the Board. (Id. ¶ 54.) The Board is required to reject findings of the COP
and the Judiciary Committee when there has been a lack of due process or a finding that the
recommendation is contrary to the clear weight of the evidence. (Id.) The grievant and respondent
have a right to appear before the Board and make a presentation of no more than ten minutes. (Id.)
Brandner and his counsel appeared before the Board, but neither Sharpe nor his counsel appeared.
(Id. ¶ 55.) Instead, Sharpe made a written submission. (Id.) Although the Grievance Procedures
do not expressly call for testimony from members of the COP hearing panel or the Judiciary
Committee before the Board, representatives from each made presentations to the Board regarding
Sharpe’s grievance. (Id. ¶ 56.) Brandner’s counsel noted to the board that the AAOS did not
adopt its original SOPs until April 18, 2005, six months after Brandner agreed to give expert
testimony in the underlying case. (Id. ¶ 57.)
On July 2, 2010, Brandner’s counsel received a letter stating that the AAOS Board of
Directors had voted to suspend Brandner for one year based on violations of the SOPs, Mandatory
Standards Nos. 3 and 4. (Id. ¶ 58.) Brandner’s lawyer then sent a letter to the AAOS’s General
Counsel indicating that Brandner intended to file suit and asking that the decision of the AAOS
Board to suspend Brandner not be publicly disclosed. (Id. ¶ 59.) Brandner received a response
from the AAOS General Counsel stating that he agreed on behalf of the AAOS to refrain from
publicly disclosing the suspension until the AAOS Board voted on the issue. (Id. ¶ 60.)
Approximately three weeks later, on July 30, 2010, Brandner’s counsel received a letter from the
Chief Executive Officer of the AAOS stating that it intended to follow its Bylaws regarding public
communications of its decision but that the Board did not anticipate publication of the matter while
it was considering Brandner’s draft pleading. (Id. ¶ 62.)
On September 30, 2010, Brandner’s counsel received a letter from AAOS’s General
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Counsel stating that the Board had voted to rehear Sharpe’s grievance at its meeting in Chicago on
December 4, 2010. (Id. ¶ 63.) The letter also indicated that the June 19, 2010 decision of the
AAOS that Brandner should be suspended for one year was null and void. (Id.) While Brandner
and his counsel attended the December 4, 2010 hearing before the Board of Directors, neither
Sharpe nor his lawyer did. (Id. ¶ 65.) Brandner’s counsel made a ten-minute statement. (Id.)
Brandner’s counsel received a letter on December 10, 2010, advising him that the Board
had once again voted to suspend Brandner for one year based on his violation of Mandatory
Standards No. 3 and 4. (Id. ¶ 67.) Although Brandner asked the AAOS to withhold public
disclosure of its decision until a ruling was issued on Brandner’s motion for a temporary
restraining order in the instant case, the AAOS stated that it would not withhold publication of the
decision. (Id. ¶¶ 68-69.)
II.
Analysis
“In Illinois, voluntary associations have great discretion in conducting their internal
affairs, and their conduct is subject to judicial review only when they fail to exercise power
consistently with their own internal rules or when their conduct violates the fundamental right of a
member to a fair hearing.” Austin v. Am. Ass’n of Neurological Surgeons, 120 F. Supp. 2d 1151,
1152 (N.D. Ill. 2000) (citation and internal quotation marks omitted). “Under Illinois law, a court
ordinarily will not review the actions of a voluntary association with respect to its members; when
a court does intervene, the scope of its intervention is exceedingly narrow.” Nat’l Ass'n of
Sporting Goods Wholesalers, Inc. v. F.T.L. Mktg. Corp., 779 F.2d 1281, 1285 (7th Cir. 1985).
Accordingly,
[u]nder Illinois law, a court may review the internal procedures of a voluntary
association with respect to its members only when: (1) the operation of the
association significantly harms an important economic interest of the plaintiff
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belonging to the association when it acted; (2) the association (a) failed to act in
accord with its own constitution and bylaws; (b) was influenced by bias, prejudice,
or lacking in good faith, or (c) violated due process.
Austin, 120 F. Supp. 2d at 1153.
A.
Important Economic Interest
AAOS contends that Brandner fails this prong given the Seventh Circuit’s statement that
“[w]here membership is optional, expulsion (or suspension, or denial of admission) is not deemed
the invasion of an important economic interest.” Austin v. Am. Ass’n of Neurological Surgeons,
253 F.3d 967, 971 (7th Cir. 2001). In Austin, the plaintiff brought suit against the American
Association of Neurological Surgeons after he was suspended for six months based on his
testimony in a medical malpractice suit. Similar to the allegations in this case, Austin claimed that
he had been suspended as revenge for having testified against another member of the Association.
Id. at 968. The Seventh Circuit held that his claim against the Association failed because, among
other things, Austin failed to show an important economic interest. Id. at 971. The court
concluded that a 65% drop in earnings from testifying from the previous year’s income of
$220,000.00 still left a “healthy” $77,000.00 and noted also that this amount represented “income
from a sideline to his primary profession, which is that of a neurosurgeon.” Id. The Austin court
found that this “is not the kind of professional body blow that the cases have in mind when they
speak of an ‘important economic interest’ jeopardized by the action of a voluntary association.”
Id. at 972.
The Court finds this case distinguishable. Here, it is undisputed that from 2008 through
2010, 73%, or $1,660,950.27, of Brandner’s income was generated from medical legal support.
During that same period, total revenue from his orthopedic practice was $614,794.00. (Pl.’s Rule
56.1(b)(3) Resp., Dkt. # 82, ¶ 72.). Brandner testified at his deposition that he believed that
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suspension from the AAOS would end his medical career and that the loss of income from being
suspended would render him unable to meet the overhead obligations associated with his practice.
(Defs.’ Resp. Pl.’s LR 56.1(a) Stmt., Dkt. # 87, ¶ 11.) Because it is undisputed that the suspension
would “jeopardize the principal source of [Brandner’s] livelihood,” Austin, 253 F.3d at 972, the
Court concludes that the suspension would interfere with an important economic interest.
B.
Due Process
The Seventh Circuit has addressed the concept in proceedings relating to voluntary
associations as follows:
[D]ue process is an amorphous concept of less than facile application. There are no
rigid or universal rules determining what constitutes procedural due process.
Indeed, the dictates of that flexible concept vary substantially depending upon the
nature of the proceedings. . . .The procedural due process requirements in an
organization's disciplinary or expulsion actions are necessarily dependent in part
upon the nature of the member's interest in continuing his membership. . . . [W]e do
not find that due process requires that he be given a “trial-type hearing.” . . .
Plaintiff's interest in maintaining his membership in a private, voluntary
association, . . . deserves protection from arbitrary abridgement. Yet experience
teaches that adequate protection can be given without the employment of full-blown
adversary proceedings.
Duby v. Am. Coll. of Surgeons, 468 F.2d 364, 368-69 (7th Cir. 1972).
Brandner asserts that the AAOS failed to act in accordance with its internal Bylaws and
Grievance Procedures, thus depriving Brandner of due process. While alleging widespread
disregard for the Bylaws and Grievance Procedures,1 Brandner points to two purported violations
in particular: (1) improperly shifting the burden of production from Dr. Sharpe as grievant to
1
Brandner states that the “AAOS failed to act in accordance with its Professional
Compliance Grievance Procedures on no fewer that thirty-six occasions in its handling of the
Grievance.” (Pl.’s Cross Mot. Summ. J., Dkt. # 80, at 7.) However, while he acknowledges the
“repeated disregard” by the AAOS for their procedures, he focuses and discusses only two in
particular. The Court therefore, will confine its analysis to these two purported violations.
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Brandner as respondent, and (2) repeatedly recasting the grievance such that Brander was forced to
defend against constantly changing allegations.
1.
Shifting Burden of Proof/Failure to Require Full Document Production
“[D]isciplinary proceedings conducted by voluntary associations do not require strict
compliance with judicial standards of due process . . . . [i]nstead, the accused member is entitled to
a hearing before a fair and impartial tribunal.” Butler v. USA Volleyball, 673 N.E.2d 1063, 1066
(Ill. App. Ct. 1996) (citation and internal quotation marks omitted).
Section VII(A)(5) of the Grievance Procedures provides: “The Grievant bears the burden
of proof and must submit written material as part of the grievance process.” Section VI(C) states
that “[e]ach party to a grievance is responsible for obtaining and providing all written material,
such as transcripts and medical records, for consideration by AAOS.” Finally, Section VII(D)(9)
provides that after the grievance hearing and prior to issuing its recommendations, the Grievance
Hearing Panel may request additional information from the Grievant, Respondent, or any third
party. Any additional information will be made available to each party.
Brandner contends that as early as his initial response to Sharpe’s grievance, he indicated
to the COP hearing panel that he did not have access to all of the documents he reviewed for his
testimony in the underlying malpractice action because they were returned to Sharpe’s attorney,
who indicated the documents were irretrievable. Brandner states that, in filings with the hearing
panel, he again indicated that he had attempted to obtain records from Sharpe’s attorney but his
requests were denied. Further, at the initial hearing before the COP hearing panel, Brander states
that despite his repeated assertions that Sharpe had failed to produce all deposition transcripts from
the underlying malpractice action, the hearing panel took Sharpe at his word that he had provided
all of the depositions to the panel. The panel then issued its Report and Recommendation without
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reviewing the transcripts from depositions of the patient and his mother in June 2005 or their trial
testimony. Brandner contends that the panel’s conclusion that the “record show[ed]” that
informed consent was given by the patient and his mother was based on incomplete record. While
he was able to obtain copies of the transcripts prior to the hearing before the Judiciary Committee,
Brandner asserts that the Grievance Procedures render the Judiciary Committee ill-equipped to
handle new evidence and indeed that Section VII(E)(9) of the Grievance Procedures states that no
new evidence may be presented to the Judiciary Committee. Brandner further argues that, in any
event, the strict time limits for representing one’s case before the Judiciary Committee precluded a
full discussion of the evidence. For its part, the AAOS contends that it substantially complied with
the Grievance Procedures and therefore provided Brandner with due process.
As an initial matter, the Court agrees with the defendants that to the extent that Grievance
Procedure VI(C) provides that “each party to a grievance is responsible for providing all written
material, such as transcripts and medical records, for consideration by AAOS,” this simply means
that the parties are responsible for providing copies of any written materials that they want the
AAOS to consider. Brandner’s assertion that Grievance Procedure VI(C) requires a party to
provide all documents, regardless of whether they support the party’s claim, is not supported by
the plain language of the procedure. Indeed, Section III(6) of the grievance report form requires
the grievant to “[a]ttach complete copies of any documents that you rely upon as evidence,
providing specific page references to the portions that support your allegations.” (Defs.’ Resp.
Pl.’s LR 56.1(a) Stmt., Dkt. # 87, ¶ 40.)
Brandner faults the COP hearing panel for not requiring Sharpe to produce the June 8,
2005 deposition transcripts from the patient and his mother in which they testified that Sharpe had
not discussed the specific risks of the surgery with them. However, when the COP hearing panel
16
asked Brandner exactly which transcripts were missing, he indicated that he could not tell them
because he had returned all of the documents from the case to the patient’s attorney. (Young Aff.,
Ex. 26, Dkt. # 74-26, at 37-38.) Moreover, when the COP hearing panel confirmed that the patient
and his mother’s conflicting deposition testimony had come out at trial and asked Brandner if he
had a copy of the trial transcript or had obtained one from the court, he said no. (Id. at 39.)
Most important, by the time the dispute had reached the Judiciary Committee on review
from the findings of the COP hearing panel, Brandner had obtained copies of the deposition
transcripts and produced them to the Judiciary Committee. (Pl.’s Ex. 33, Brandner’s Appeal Stmt.
with exhibits, Dkt. # 81-33.) Brandner discussed the transcripts in his twelve-page written appeal
to the Judiciary Committee. (Id.) Moreover, Brandner’s lawyer specifically discussed the June 8,
2005 version of the deposition transcripts in his presentation to the Judiciary Committee.. (Pl.’s
Ex. 35, Jud. Comm. Hr’g Tr., Dkt. # 81-35.) In its written ruling, the Judiciary Committee noted
the contradictory testimony between the two sets of depositions and stated it was not persuaded
that “the change in testimony given in these later depositions is evidence that Dr. Sharpe failed to
inform the patient of peroneal nerve injury.” (Pl.’s Ex. 36, Jud. Comm. App. Hr’g. Rep., Dkt. #
81-36, at 8.) The Judiciary Committee indicated that Brandner’s choice of accepting one version
of the patient’s testimony over another had taken Brandner “out of the realm of objectively
‘counseling’ on standard of care and made him condemning of the care provided by Dr. Sharpe.”
(Id.)
Finally, the Court notes that after receiving a draft of his proposed complaint in support of
a threatened lawsuit and acknowledging that it had violated Grievance Procedures during the first
hearing by allowing a member of the COP hearing panel to make a presentation, the Board voted
to nullify its initial decision and agreed to rehear the case. At the second hearing before it, the
17
Board allowed Brandner to resubmit written materials and reargue his case. Brandner contends
that the second Board hearing did not cure the procedural violation because the same Board
members who had heard the “improper” presentation by the COP hearing panel member also
presided over the second hearing. Brandner, however, fails to point to any record evidence in
support of this assertion. Further, assuming it is factually accurate, he fails to cite any AAOS
Bylaws or Grievance Procedures that were purportedly violated. Accordingly, the Court rejects
this basis for relief.
Brandner acknowledges that upon rehearing, the prior decision by the Board was null and
void and that the AAOS considers the findings of the COP hearing panel and the Judiciary
Committee to be essentially irrelevant once the Board has ruled. (Pl.’s Cross Mot. Summ. J., Dkt.
# 80, at 18.) Nevertheless, Brandner contends that the procedural irregularities that occurred
before the COP hearing panel prejudiced him because the time limits imposed on the presentations
before the Judiciary Committee and the Board render those proceedings unsuitable for presenting
new evidence. But all litigants, even those proceeding before this Court and the Seventh Circuit,
are bound by time and page limits and must select their best arguments, in both their written filings
and oral presentations. Watts v. Thompson, 116 F.3d 220, 224 (7th Cir. 1997) (rejecting due
process argument regarding page limits on briefs and noting that “[e]nforcing page limits and other
restrictions on litigants is rather ordinary practice. This court has a page limit which is rather
strictly, and cheerfully, enforced.”). To assert that he did not have sufficient time to raise the fact
of the patient’s later depositions is a non-starter, particularly where it is undisputed that Brandner
addressed the issue in both his oral argument and written filings with the Judiciary Committee and
the Board.
Brandner appears to argue that any violation of a Grievance Procedure (and Brandner
18
details thirty-six purported violations) cannot be cured and requires that a court annul an expulsion
or, in this case, a suspension. But that cannot be the case. Otherwise, the concept of limited
judicial review of the internal administration of voluntary associations espoused by the Seventh
Circuit would be meaningless. All of the relevant documents have been produced and considered.
Brandner had a hearing before the COP hearing panel, another before the Judiciary Committee and
two in front of the Board of Directors. He was permitted to make oral arguments and supplement
with written filings. In terms of compliance with the Grievance Procedures and Bylaws, Brandner
received due process.
2.
Changing Allegations
Brandner also contends that the AAOS recast the allegations against him. Specifically,
Brandner asserts that the COP hearing panel ignored the allegations leveled by Sharpe and, in
violation of Brandner’s due process rights and AAOS Grievance Procedure VI(B)(3), which
requires that the parties to a grievance have the right to know the specific allegations against them,
recast the allegations.
Sharpe alleged in his grievance that Brandner failed to meet Mandatory Standard Nos. 3
and 4 by stating that the standard of care required a discussion of the specific risks of peroneal
nerve damage and by testifying that the patient was not given a non-operative option and that the
fracture had remodeling potential. (Defs.’ Resp. Pl.’s LR 56.1(a) Stmt., Dkt. #87, ¶ 26.) Brandner
asserts that instead of basing their finding of violation on these issues, the COP hearing panel
found that Brandner had violated Standard Nos. 3 and 4 by “condemn[ing] performance that [fell]
within generally accepted practice standards” because “[t]he record show[ed] that informed
consent was given.” (Pl.’s Ex. 30, COP Hr’g Rep., Dkt. #81-30, at 9.) He further claims that on
appeal, the Judiciary Committee again failed to rule on the merits of the matter as presented to it,
19
but in a different way. Rather than agreeing with the COP hearing panel’s reason for concluding
that Brandner had violated Standard Nos. 3 and 4, the Judiciary Committee found that Brandner
had violated those standards when he agreed to offer expert testimony on behalf of the patient in
the face of conflicting deposition testimony. Specifically, the Judiciary Committee stated:
[T]he question of whether a violation of the Standards of Professionalism exists is
not that [Brandner] chose to base his opinion on contradictory evidence from
patient and treating physician, but the fact that he chose one version of the
plaintiffs’ depositions over another. This choice took Dr. Brandner out of the realm
of objectively “counseling” on standards of care and made him condemning of the
care provided by Sharpe.
(Pl.’s LR 56.1(a) Stmt., Dkt # 81, ¶ 53.)2
But, regardless of how the issue is cast, Sharpe’s grievance was always based on the
propriety of Brandner’s testimony, both in his deposition and at trial, that Sharpe had failed to
meet the standard of care regarding informed consent. In Brandner’s deposition, when asked
whether he believed that Sharpe had violated the standard of care with respect to informed
consent, he replied, “yes.” (Pl.’s Ex. 10, Brandner Dep., Dkt. # 81-10, at 20.) While Brandner
may have qualified that statement somewhat in subsequent questions, the fact remains he testified
at his deposition that he believed that Sharpe had violated the standard of care regarding informed
consent. With respect to his trial testimony, Brandner testified that the relevant standard of care
2
In addition, Brandner argues that the Judiciary Committee’s Report and
Recommendation was notable because the standards Brandner was alleged to have violated were
not adopted until six months after he agreed to act as an expert and as originally adopted in April
2005, the Mandatory Standards did not require a member testifying as an expert to review
deposition transcripts, only pertinent medical records. (Pl.’s Cross Mot. Summ. J., Dkt. #80, at
15.) According to Brandner, the Grievance Procedures themselves state that they apply only to
grievances filed against an AAOS member that allege a violation of the AAOS SOPs arising
from activities that occurred on or after April 18, 2005, and he agreed to act as an expert in
October 2004. But, he gave his deposition in the case on August 5, 2005, and his trial testimony
on April 29, 2008, both of which provided the bases for his suspension. (Pl.’s Exs. 10 & 11,
Dkt. ## 81-10 & 81-11.)
20
for informed consent in a proximal tibial osteotomy required a discussion about the possibility of
peroneal nerve injury and that his review of the medical records indicated that no such discussion
had taken place. (Pl.’s Ex. 11, 4/29/08 Trial Tr., at 15-17.) When defense counsel asked Brandner
about the patient’s mother’s 2004 deposition testimony in which she stated that Sharpe had
discussed the risk of nerve injury prior to the surgery, Brandner testified that he believed she was
discussing “things that happened after the surgery and she understands it and she mentions it . . . .
[b]ut she doesn’t specifically define that she knew the nerve could be stretched, before.” (Id. at
36.)
Noticeably absent from Brandner’s discussion of the issue of the purported changing
allegations is any particularized statement of how Sharpe’s grievance differed from the
interpretation of the COP hearing panel and the Judiciary Committee, and most important, what
evidence or argument he was precluded from presenting based on the purportedly recast
allegations. In the absence of any contention that he would have presented different argument or
evidence, Brandner’s assertion of a violation of due process based on recast allegations fails.
Brandner and his counsel made arguments at every level of the grievance process as to
what they believed the evidence showed, including that the scope of Brandner’s testimony was
limited and was not intended as an indictment of Sharpe’s performance regarding the informed
consent standard of care. The COP hearing panel, the Judiciary Committee and the Board did not
agree. This Court’s limited review of an association’s actions regarding its members does not
permit it to review whether the decision was right or wrong, but simply whether it was made
without bias, prejudice or bad faith, by following proper association procedures and in the absence
of a due process violation.
B.
Bias, Prejudice, Lack of Good Faith
21
Brandner next asserts that the AAOS’s lack of good faith and bias is evident in the fact
that a member of the Judiciary Committee, Dr. Richard Geline, served on the Board of Directors of
ISMIE Mutual Insurance Company, a physician-owned insurance company which insures doctors
against malpractice claims.3 (Pl.’s LR 56.1(a) Stmt., Dkt. # 81, ¶ 72.) Brandner contends that
because Sharpe’s grievance stemmed from Brandner’s testimony as an expert witness for a
plaintiff in a medical malpractice claim, Geline, as an ISMIE Board member, had a direct financial
incentive to reduce the size and number of medical malpractice claims against doctors. According
to Brandner, this purported conflict should have been disclosed to him.
But, it is undisputed that ISMIE insures doctors in Illinois, neither Sharpe nor Brandner
was insured by ISMIE, and the underlying malpractice case, which was litigated in Arizona, was
over. Brandner has pointed to no evidence that Geline would have personally financially
benefitted from participating as a member of the Judiciary Committee with respect to Sharpe’s
grievance. Geline’s duty as an ISMIE Board member to “guard the welfare of the company” is
simply too attenuated to be considered either a “ real or perceived” conflict that needed to be
disclosed.
Brandner also asserts that the COP hearing panel should have disclosed to him that two of
the panel members, Drs. Butler and Mandell, knew Sharpe’s expert witness, Dr. Russo, from his
prior position on the AAOS Board of Councilors. Although neither Butler nor Mandell was a COP
hearing panel member with respect to the Sharpe’s grievance, Brandner asserts that Butler
3
Brandner also asserts in his reply brief that AAOS’s disregard of its procedures, as
discussed above, also demonstrated bad faith and bias. The Court, however, will not consider
arguments raised for the first time in a reply brief. Nelson v. La Crosse Cnty. Dist. Attorney, 301
F.3d 820, 836 (7th Cir. 2002) (“It is well settled that issues raised for the first time in a reply
brief are deemed waived.”).
22
“poisoned the well” by sending an e-mail to all of the COP panel members notifying them of his
professional relationship with Russo and stating that he had “good memories of him as a person
and a doctor.” (Pl.’s LR 56.1(a) Stmt., Dkt. # 81, ¶ 73). Butler further indicated in the e-mail that
because he might be biased for Russo, he was recusing himself from the Sharpe grievance.
Although subsequent communications among the COP hearing panel members indicated that they
believed the proper way to handle the information was through disclosure to Brandner, the AAOS
never informed Brandner of the purported conflict. But, as already noted, neither Butler nor
Mandell participated in hearing Sharpe’s grievance. Because Brandner has failed to point to any
AAOS procedure that was violated, or indeed, any prejudice resulting from the e-mails, the Court
rejects the argument that the failure to disclose the reasons for Butler and Mandell’s recusal and
their e-mails to the COP hearing panel constituted bad faith.
Finally, Brandner argues that AAOS grievance hearing program results demonstrate that
the AAOS has used its Professional Compliance Program as a tool to further its tort reform agenda
by punishing doctors who testify against members of the AAOS. Specifically, Brandner asserts
that out of forty-four AAOS grievances involving expert testimony, the AAOS never suspended a
member who offered expert testimony for the defense. In contrast, on seventeen occasions the
AAOS has suspended a member who has offered testimony for the plaintiff. But Brandner fails to
put the numbers in context–how many grievances were brought against members who testified for
the plaintiff versus the defense? If, for example, forty grievances were filed against members who
testified for the plaintiff and only four who testified for the defense, then the seventeen
suspensions for those who testified for the plaintiff takes on a different meaning. Moreover, in
rejecting a similar argument in the Austin case, the Seventh Circuit noted that the reason for this
type of assymetry is obvious because:
23
If a member of the Association is sued for malpractice and another member gives
testimony for the plaintiff that the defendant 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 testifies 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 fellow 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. The asymmetry that
Austin points to as evidence of bad faith is thus no evidence of bad faith at all; and
he has no other evidence of bad faith.
Austin, 253 F.3d at 967.
Based on Brandner’s failure to place the numbers in context and the Seventh Circuit’s
rejection of a similar argument, the Court rejects Brandner’s argument that the suspension record
for grievances establishes bad faith.
IV.
Conclusion
For the reasons stated above, Brandner’s motion for summary judgment [79-1]is denied
and the AAOS’s motion for summary judgment [70-1] is granted. The clerk is directed to enter a
Rule 58 judgment and terminate this case from the Court’s docket.
Date: September 27, 2012
___________________________________
Ronald A. Guzman
United States District Judge
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