Neurosurgeon Loses Appeal of Censure for Expert Witness Testimony

Expert witnesses may have immunity from the courts for flawed testimony, but not from their professional associations. The 5th U.S. Circuit Court of Appeals has upheld an association's censure of one of its member neurosurgeons who failed to review all of the relevant medical records before testifying.

In Barrash v.American Association of Neurological Surgeons, Dr. Jay Martin Barrash, a neurosurgeon, sued the American Association of Neurological Surgeons (AANS) after it censured him. The censure was the result of a grievance filed with the AANS by another neurosurgeon and AANS member, Dr. Oishi, who Dr. Barrash had testified against in a medical malpractice case.

The AANS's Professional Conduct Committee (PCC) found that while Dr. Barrash was appropriate in his criticism of the post-operative care given by Dr. Oishi, Dr. Barrash failed to review an intraoperative x-ray showing the initial bone graft placement prior to testifying, failed to provide impartial testimony, failed to allow for differing medical opinions, lacked the training and experience to testify and charged excessive expert witness fees. The PCC recommended that Dr. Barrash's AANS membership be suspended for six months.

Dr. Barrash appealed to the AANS Board of Directors, who downgraded his suspension to a censure. He then appealed to the AANS members at-large, who upheld the censure.

Dr. Barrash then resigned from the AANS and sued, claiming damages because of lost income opportunities as an expert witness following publication of the censure. (He had regularly testified as an expert witness prior to the censure.) The district court found that the AANS did not give adequate due process in the charge of unbiased testimony as it failed to provide Dr. Barrash with sufficient notice of the "nature and identity" of the alleged unbiased testimony in the initial charges against him. The district court dismissed Barrash's other claims (tortious interference and breach of contract claims were dismissed under FRCP 12(b)(6)). In summary judgment, the district court set aside the portion of the censure relating to unbiased testimony and left the rest of the censure in place.

Dr. Barrash appealed. He argued that the district court should have set aside the entire censure because it found one of the bases for it to be a due process violation.

In its ruling, the the appellate court found the district court's decision unique in finding only a partial due process violation resulting in only a partial vacation of an association's adverse action. It noted the Texas doctrine of judicial non-intervention in professional associations, that Texas courts, like many in the United States, only conduct judicial reviews of voluntary organization's internal decisions when they are "… illegal, against some public policy, or are arbitrary or capricious".¹

Although the appellate court disagreed with the district court' partial due process conclusion, it found that it ruled correctly and affirmed the district court's decision. Dr. Barrash received due process on the charge of failing to review all the medical records before testifying, and AANS's censure for that misconduct was precluded by the Texas doctrine of judicial non-intervention, the appellate court found.

Although the court's may be required to allow flawed expert witness testimony, professional associations are not under the same restrictions, and some are especially sensitive to one member testifying against another.