Austin v. American Assoc. of Neurological Surgeons

• Decision Date: 12 June 2001
• Docket Number: No. 00-4028,00-4028
• Parties: (7th Cir. 2001) Donald C. Austin, Plaintiff-Appellant, v. American Association of Neurological Surgeons, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 967

253 F.3d 967 (7th Cir. 2001)

Donald C. Austin, Plaintiff-Appellant, v. American Association of Neurological Surgeons, Defendant-Appellee.

No. 00-4028

In the United States Court of Appeals For the Seventh Circuit

Argued April 9, 2001

Decided June 12, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 7685--Elaine E. Bucklo, Judge.

Before Posner, Evans, and Williams, Circuit Judges.

Posner, Circuit Judge.

Donald C. Austin, a neurosurgeon, was suspended for six months by the American Association of Neurological Surgeons, a voluntary association incorporated under Illinois law as a not-for-profit corporation, to which he belonged (he has since resigned). He brought this suit against the Association claiming that he had been suspended in "revenge" for having testified as an expert witness for the plaintiff in a medical malpractice suit brought against another member of the Association, a Dr. Ditmore. Austin argues that the suspension violated Illinois law (federal jurisdiction is based on the parties' being citizens of different states) and seeks damages measured by the decline in his expert-witness income as a consequence of the suspension. He also seeks an injunction expunging the record of the suspension, but he does not seek reinstatement to membership.

Ordinarily a dispute between a voluntary association and one of its members is governed by the law of contracts, the parties' contractual obligations being defined by the charter, bylaws, and any other rules or regulations of the associ ation that are intended to create legally enforceable obligations. See, e.g., Head v. Lutheran General Hospital, 516 N.E.2d 921, 927 (Ill. App. 1987); Perkaus v. Chicago Catholic High School Athletic League, 488 N.E.2d 623, 627 (Ill. App. 1986); Dawkins v. Walker, No. 1991712, 2001 WL 259285, at *5 (Ala. March 16, 2001); Robinson v. Kansas State High School Activities Ass'n, Inc., 917 P.2d 836, 844 (Kan. 1996); 2 Marilyn E. Phelan, Nonprofit Enterprises: Corporations, Trusts, and Associations sec. 14:03, p. 14-12 (2000). Austin does not argue that in suspending him the Association was violating any of its contractual obligations to him. But recognizing that membership in good standing in a professional association may be essential to a professional's livelihood, Illinois like other states has conferred additional legal rights on members of voluntary associations (not limited to professional associations). A member who can show that the association's action of which he complains substantially impaired an "important economic interest" of his can base suit on procedural irregularities (denial of "due process") or bad faith as well as on the usual contractual grounds. Van Daele v. Vinci, 282 N.E.2d 728, 731- 32 (Ill. 1972); National Assoc. of Sporting Goods Wholesalers, Inc. v. F.T.L. Marketing Corp., 779 F.2d 1281, 1285 (7th Cir. 1985) (applying Illinois law); Jacobson v. New York Racing Ass'n, 305 N.E.2d 765, 768 (N.Y. 1973); Falcone v. Middlesex County Medical Society, 170 A.2d 791, 796-97 (N.J. 1961); Freeman v. Sports Car Club of America, Inc., 51 F.3d 1358, 1363 (7th Cir. 1995) (applying Indiana law); NAACP v. Golding, 679 A.2d 554, 562 (Md. App. 1996); 2 Phelan, supra, sec. 14:03, pp. 14-10 to 14-11. The cases add to the list of grounds for such a suit violation of the association's charter or bylaws and contravention of public policy, but the former ground (violation of charter or bylaws) is just another way of assimilating voluntary-association law to contract law (see, besides the cases cited earlier, Van Valkenburg v. Liberty Lodge, 619 N.W.2d 604, 610 (Neb. App. 2000), and Employees' Benefit Ass'n v. Grissett, 732 So. 2d 968, 975 (Ala. 1998))--and the latter too, since illegality is a conventional basis in contract law for rescinding a contract, see, e.g., E. Allan Farnsworth, Contracts sec.sec. 5.1, 5.8 (3d ed. 1999), including a bylaw or charter provision pursuant to which a member of a voluntary association has been expelled. See, e.g., Crandall v. North Dakota High School Activities Ass'n, 261 N.W.2d 921, 925-26 (N.D. 1978). What "bad faith" adds to the litany of grounds is obscure; it can be regarded either as a component of the due process analysis, analogous to the requirement of an impartial tribunal in an ordinary due process case, or as an implied term in the contract between the association and its members.

There were no procedural irregularities here--Austin received notice and a full hearing (with counsel) before a panel of Association members not implicated in his dispute with Ditmore. The complaint is rather that the Association acted in bad faith because it never disciplines members who testify on behalf of malpractice defendants as distinct from malpractice plaintiffs and that it is against public policy for a professional association to discipline a member on the basis of trial testimony unless the testimony was intentionally false.

Austin had been retained to testify on behalf of a woman whose recurrent laryngeal nerve was permanently damaged in the course of an anterior cervical fusion performed by Dr. Ditmore, resulting in a paralyzed vocal cord, dif ficulty in swallowing, and shortness of breath that ultimately required her to undergo a tracheostomy. An anterior cervical fusion is an operation to repair a herniated spinal disc at the back of the neck. The operation is called "anterior" because the surgeon cuts into the spine from the front, that is, through the neck, being careful to push aside ("retract," in medical lingo) the tissues in front of the spine. According to the testimony that Austin was permitted to give at trial, he believes and "the majority of neurosurgeons" would concur that the plaintiff could not have suffered a permanent injury to her recurrent laryngeal nerve unless Dr. Ditmore had been careless, because she had no anatomical abnormality that might have enabled such an injury to result without negligence on the surgeon's part- -though in the disciplinary hearing it emerged that, because the recurrent laryngeal nerve is difficult to see, and often is not seen during the operation, it may be impossible to determine whether the particular patient's nerve is unusually susceptible to injury. Austin testified that Ditmore must have rushed the operation (though there was no other evidence of that) and as a result retracted the tissues adjacent to the recurrent laryngeal nerve too roughly. As Ditmore pointed out at the hearing, however, Austin could hardly be considered an expert on anterior cervical fusion, having performed only 25 to 30 of them in more than 30 years in practice, although he had performed a large number of other cervical operations. Ditmore in contrast had performed 700 anterior cervical fusions--with exactly one case of permanent damage to a patient's recurrent laryngeal nerve, namely the case of the patient who had sued him.

Dr. Austin claimed at the hearing that he had based his opinion on an article by a Dr. Ralph Cloward, described by Austin as the "father" of anterior cervical fusion, which had concluded that "serious complications are avoidable and can be prevented by the surgeon adhering strictly to the surgical technique described for" an anterior cervical fusion; and on another article, which Austin did not date, or identify other than by the last name of the author, Wat kins, which states that "the key to prevention of traction injuries to the [recurrent laryngeal] nerve is not to retract vigorously into the soft tissues." Although neither side's lawyer appears to have been aware of the fact, both articles are reprinted in full in the appellate record--in fact twice. The citations are Ralph B. Cloward, "Complications of Anterior Cervical Disc Operation and Their Treatment," 69 Surgery 175, 182 (1971); Robert G. Watkins, "Cervical, Thoracic, and Lumbar Complications--Anterior Approach," in Complications of Spine Surgery 211, 221 (Steven R. Garfin ed. 1989).

Neither article supports Austin's testimony. Cloward was making a general statement of reassurance about the avoid ability of serious complications of his pet operation, not anything specifically to do with the risk of permanent damage to the recurrent laryngeal nerve. Watkins never suggested that all traction injuries to the recurrent laryngeal nerve could be prevented by gentle retraction. Austin admitted that he hadn't discussed the matter with any other medical professionals. Expert evidence contrary to Austin's was given and the jury returned a verdict for Ditmore. That was in 1995. Ditmore promptly complained to the Association and Austin was suspended in 1997 following a hearing at which he and Ditmore testified, the latter to the effect that Austin had no basis for testifying that most neurosurgeons agreed with his view. This suit followed quickly on the heels of the suspension, and the district court granted summary judgment in favor of the Association.

Oddly, apart from Cloward's article, and the Watkins article of unknown provenance (unknown to the lawyers, that is), no literature on anterior cervical fusion or injuries to the recurrent laryngeal nerve was presented either to the Association's hearing board or to the district court, although some additional literature had been presented at the malpractice trial and there is an abundance of up-to-date relevant literature easily retrievable from the World Wide Web. There we discover in a cursory search that permanent damage to the recurrent laryngeal nerve is a known though fortunately rare complication of anterior cervical fusion (a 1982 study found only 52 cases of paralysis to the recurrent laryngeal nerve in 70,000 such operations--.07 percent) against which the patient should be warned. See, e.g., informeddecision.com, http://www. informeddecision.com/options/cervical/cr vfusna.htm; wvneuro.com, http://www.wvneuro.com/anterior_...