Steven R. Graboff, MD
Huntington Beach, Calif.
On April 10, 2008, a grievance was filed against Dr. Graboff alleging violations of Mandatory Standards Nos. 1, 2, 3, 4, 5, 7, 8, and 9 of the Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony. The grievance arose from statements made by Dr. Graboff in a medical-legal written report to plaintiff’s legal counsel. The report was part of a medical liability lawsuit in which the plaintiff-patient claimed that the defendant-orthopaedic surgeon failed to remove certain hardware (cerclage wires) during two surgeries on the right femur. It was further asserted that the presence of this hardware prevented curing of the patient’s femoral osteomyelitis and resulted in an above-knee amputation. The case, which named the hospital and additional physicians as defendants, was settled out of court without permission or knowledge of the defendant-orthopaedist.
The plaintiff-patient sustained a right femur fracture in a 1976 motor vehicle accident. He underwent an open reduction internal fixation procedure with an intramedullary (IM) rod and two cerclage wires. In 2000, arthroscopic treatment for bilateral Staphylococcus aureus septic arthritis of both knees was successful. The defendant-orthopaedist first saw this plaintiff-patient in May 2004 when the patient was hospitalized for severe chronic infection of the right hip and thigh. Multiple comorbidities noted included severe anemia, type 2 diabetes mellitus, hypertension, peripheral vascular disease, tobacco and alcohol abuse, and past history of marijuana and crack cocaine use. The defendant-orthopaedist concluded that resolution of true chronic osteomyelitis would not be reasonably possible and that the treatment goal was to control symptoms and spread of the disease. A discussion of risks, benefits, and alternatives was also recorded.
The defendant-orthopaedist performed surgery to aspirate the right knee, remove the femoral IM rod, and débride and irrigate the soft-tissue abscess/infection. The two cerclage wires, which were embedded in bone, were not removed. The plaintiff-patient received 8 weeks of intravenous antibiotics. Two months later, the defendant-orthopaedist performed a second surgery to débride and revise the open right hip wound. The patient was followed for 4 months after discharge and had no sign of infection and demonstrated a normal gait pattern without the use of an assistive device by November 2004.
In May 2005, the plaintiff-patient visited a second medical facility with evidence of chronic osteomyelitis of the right femur, a septic knee, and osteomyelitis of the proximal tibia. He underwent an open above-knee amputation with secondary wound closure. The two embedded cerclage wires were left in place, 6 inches proximal to the level of the transfemoral amputation. The patient was fitted with a prosthesis. In March 2007, the plaintiff-patient was seen for follow-up at the second facility and requested a new prosthesis. At that time, the right thigh showed no sign of infection and the stump was well healed.
Dr. Graboff, in his written report, indicated that he had reviewed the plaintiff-patient’s deposition and the medical records from the hospitals and treating physicians. He stated that the defendant-orthopaedist was negligent and fell below the standard of care when he failed to remove the two infected cerclage wires around the proximal femur, which continued to act as a source of persistent infection in the right leg. Dr. Graboff opined that, within reasonable medical certainty, if the cerclage wires had been removed by the defendant-orthopaedist in May 2004, the infection would have been completely eradicated and the plaintiff-patient would not ultimately have required the above-knee amputation in May 2005. He also stated, to a high degree of medical certainty, that the plaintiff-patient had been permanently impaired and damaged by this negligence and left with all the attendant morbidity, chronic pain, and dysfunction associated with this type of catastrophic event.
In response to the grievance filed with the AAOS Professional Compliance Program, Dr. Graboff submitted a letter restating his opinion that the Grievant/defendant-orthopaedist had violated the standard of care by not removing the two cerclage wires. The fact that the surgeon who subsequently performed the amputation had also left the wires intact did not invalidate his opinion. Moreover, Dr. Graboff submitted a second letter to the COP stating that his medical-legal report had been altered without his authorization or approval. He stated that his original signed report had included the words “Draft Report” and did not represent his final opinion and conclusion. He reported that his custom and practice is to use this designation for preliminary opinions and conclusions pending receipt of all material for review and that this information is not to be used as a final report. Dr. Graboff indicated that he was unaware of the alteration until he was preparing for the AAOS grievance hearing.
At the grievance hearing on Oct. 24, 2008, the Grievant, two witnesses on behalf of the Grievant, and Dr. Graboff were present. Dr. Graboff was initially absolute in his opinion that the Grievant had violated the standard of care by not removing all hardware and that no medical or surgical condition precluded removal of the hardware. He then contradicted himself by stating that now, after reviewing the computed tomography scan and radiographs, he did not believe the retained wires were a nidus of infection or that removing them would have eradicated the osteomyelitis. He acknowledged that removing all hardware from an infected femur is not always possible, safe, or considered to be standard of care. Dr. Graboff further admitted his report had been based on lack of information and that the Grievant had neither failed to meet the standard of care nor was responsible for the subsequent consequences in this case.
With regard to the “Draft Report,” the COP found no written documentation that Dr. Graboff considered the report’s opinions to be preliminary, that he requested all medical records and radiological studies, or that he informed the attorney he would not produce a final opinion or testify until he had reviewed all records.
After careful evaluation of all material submitted as well as oral testimonies by both parties and witnesses on behalf of the Grievant, the COP Hearing Panel found Dr. Graboff in violation of Mandatory Standards Nos. 1, 2, 3, 4, 5, and 7 of the SOPs on Orthopaedic Expert Witness Testimony and recommended that Dr. Graboff be suspended from the AAOS for 2 years.
Dr. Graboff appealed the recommendation and the Judiciary Committee conducted an appeal hearing in February 2009. Both parties were present and Dr. Graboff was represented by legal counsel. Following careful consideration, the Judiciary Committee unanimously agreed that the AAOS had afforded both parties due process and reaffirmed and adopted the report and recommendation of the COP. In their report, the Judiciary Committee opined that testimony is not narrowly defined within the context of oral depositions and/or courtroom examinations, but applies to written expert opinions as well as sworn testimony. This position highlights the language of the preamble of the SOPs on Orthopaedic Expert Witness Testimony.
The Grievant was present when the AAOS Board of Directors considered this matter on June 20, 2009. Dr. Graboff did not attend or submit a written statement although he had notice and had been invited to do so. After comprehensive evaluation and discussion, the Board upheld the findings and recommendations of the COP Hearing Panel and Judiciary Committee and voted to suspend Steven R. Graboff, MD, for 2 years because of unprofessional conduct in the performance of expert witness testimony.
September 2009 Issue
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