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Patrick Brandner, M.D v. American Academy of Orthopaedic Surgeons and American Association

September 27, 2012

PATRICK BRANDNER, M.D., PLAINTIFF,
v.
AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS AND AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS, DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzman

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 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 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 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 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, she-said" 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?

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. ...


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