Four medical societies are battling the first mass tort case to hold associations liable for information presented at their seminars. Although the specifics are particular to medical organizations, the case is causing concern in the association community. Is the lawsuit the beginning of a trend? Are other associations at risk?
The case involves more than 2,000 civil actions and 5,000 plaintiffs. The plaintiffs, patients who were implanted with pedicle screws--a type of bone screw--during spinal surgery, allege that the devices have caused them severe physical and emotional harm. Initially, the cases were directed against the pedicle screw manufacturers. But then the plaintiffs named four medical societies as defendants--the North American Spine Society, the Scoliosis Research Society, the American Academy of Orthopaedic Surgeons (AAOS), and the American Association of Neurosurgeons--accusing them of conspiring with manufacturers to promote the pedicle screws by conducting continuing medical education programs (CME) that were medical "Tupperware parties" for pedicle screws. (Although it is legal for physicians to use pedicle screws, it is illegal to promote them.)
The societies filed a motion to dismiss the cases, but in April, U.S. District Judge Louis C. Bechtle ruled against them, deciding that most counts of the case could go forward to trial. The societies have appealed the ruling before the Federal appellate court, and a decision is expected before the end of the year. Sources say the appeal is a long shot. If the appeal is denied, hundreds of cases will go to individual courts across the country, and the defendants will face the time and expense of fighting the cases one by one.
Regardless of what happens next, one aspect of Bechtle's ruling that many find particularly disturbing is his decision that the court would consider the speech at the seminars to be commercial speech, not free speech. And commercial speech that is false, deceptive, or misleading is not protected by the First Amendment.
The potential consequences reach further than medical societies, say those involved. "I think the implications are unending," says Dennis K. Wentz, MD, director, division of CME, American Medical Association. "If a teacher can be held responsible for the outcome [of a program], that forever changes the direction of education."
Two nonmedical associations, the American Council on Education and the Association of American Universities, joined the American Podiatric Medical Association and the American Association of Dental Schools in filing an amici curiae brief. The brief says that the court's decision "is a threat to the robust vitality of all academic speech," and that subjecting discourse to "potential tort liability threatens to erode the very core of First Amendment protection offered academic freedom."
Are those involved in the pedicle screw case overstating the effect? Perhaps. "It is potentially a huge threat to association-sponsored education," agrees Jerald Jacobs, attorney with Jenner & Block in Washington, DC, and general counsel for the American Society of Association Executives (ASAE). However, he adds, "It is far too early to predict the result, or whether it will be adverse to the associations involved, let alone establish a damaging precedent for all associations."
While the pedicle screw litigation is, apparently, the first mass tort case claiming injury from association-sponsored education, Jacobs points out that there have been other tort cases against associations, and most have failed. However, even when such cases ultimately fail, they exact a huge toll from the defendants. Without being anywhere near a trial date, the case has cost the AAOS $1.5 million, and that figure keeps increasing, says William W. Tipton, Jr., MD, executive vice president. While most of that loss has been reimbursed by insurance, the AAOS is still waiting for reimbursement for half a million dollars. And, the AAOS had to hire legal counsel to seek payments from its insurer, at a cost of an additional $100,000. "We could be wiped out," Tipton says unequivocally.