Virginia: Medical Malpractice – a Lawyer’s Intimidation

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Some medical malpractice defense lawyers have resorted to questioning patients’ experts in deposition whether their litigation testimony supposedly violates membership standards of their professional societies. Query: if the subsequent professional discipline of the patient’s expert by the society can result in a lawsuit verdict against the society, in Virginia can such a damages award also be against an instigating defense lawyer, law firm, and defendant client?

In a 45-page opinion entered on March 28, 2013, a Federal Court upheld a $196,000.00 jury damages verdict in favor of a Plaintiff’s medical malpractice expert against Defendants, American Academy of Orthopaedic Surgeons and American Association of Orthopaedic Surgeons (collectively “AAOS”), for engaging in “tortious conduct by portraying [plaintiff’s expert] in a false light”. Graboff v. The Colleran Firm, et al., No. 10-1710, *1 (E.D.Pa. Mar. 28, 2013). Denying AAOS’ Post-Trial Motion for Judgment as a Matter of Law, the Judge observed: “The evidence shows that the intrusion of the AAOS into the marketplace of expert orthopaedic surgeons is substantial and jeopardized Dr. Graboff’s source of income as an expert.” Id. at *45.

Virginia’s tort of civil conspiracy at common law potentially provides a cause of action against medical malpractice case participants who foster subsequent unfounded discipline of Plaintiff’s expert by his professional society. By separate Blog, Mr. Waterman will provide civil conspiracy authority.