Med Mal News

Professional Association's Censure Not Actionable in Courts

The U.S. Court of Appeals for the Fifth Circuit has determined that a Texas doctor who served as an expert witness and was censured by his professional association for the manner in which he did so may not seek redress against the association in the courts. The facts of the case, Barrash v. American Association of Neurological Surgeons (AANS), began with neurosurgeon Dr. Jay Martin Barrash's testimony against a fellow AANS member accused by a patient of medical malpractice during the patient's bone graft surgery. That surgeon settled with the plaintiff, but then filed a complaint about Dr. Barrash's testimony with the AANS. The Association investigated, and concluded that Dr. Barrash failed to review the X-ray showing the bone graft placement. Dr. Barrash was therefore suspended from membership in the AANS, although the suspension was later reduced to a censure.

Dr. Barrash resigned from the organization and filed suit against it, claiming that the AANS's actions in suspending and then censuring him tainted his professional stature and harmed his ability to serve as an expert witness in future lawsuits. Specifically, he charged the association with tortious interference, breach of contract and impairment of economic interest from denial of due process. The trial court sided primarily with the AANS, though it found the association had failed to follow proper procedures. Dr. Barrash appealed.

The Fifth Circuit noted that Dr. Barrash's claims arose out of Texas law, and that Texas courts have traditionally stayed out of disputes concerning the internal management of voluntary associations like the AANS. The only exception to this rule is when the organization's actions are illegal, capricious or against public policy. The court found none of these exceptions applied in this case. “Because Dr. Barrash received due process on the charge of failing to review all pertinent and available records prior to testifying, any further review of the AANS's subsequent censure of that misconduct is precluded by the Texas doctrine of judicial non-intervention,” wrote Judge Edith Brown Clement in her decision.

In response to the decision, Barrish's attorney, Doug Belofsky, a Northbrook, IL, solo, opined that it would have a chilling effect on doctors wishing to testify against fellow members of professional associations, as they would have no opportunity to redress any unfair and retaliatory actions in the courts.