Hear Ye, Hear Ye: The AAOS COP
Dr. Smith: “I can testify to the fact that this patient’s right leg is longer than his left leg.”
Attorney: “And you measured the patient’s legs, correct?”
Dr. Smith: “Well, no—I estimated it.”
This is a situation that might appear on the desk of Dr. Murray Goodman, Chair of the American Academy of Orthopaedic Surgeons (AAOS) Committee on Professionalism (COP). Dr. Goodman describes the origins of the committee: “In 2001 the Florida Orthopaedic Society approached AAOS with the concern that errant expert witness testimony was rampant in their state. The issue was brought before the Board of Councilors and they felt that this was something that should be addressed by the Board of Directors [BOD]. The Board then conducted two surveys of AAOS members and found each time that an overwhelming majority of the membership felt that this was a critical issue.”
The Board of Directors decided on a two-pronged approach, says Dr. Goodman.
The first goal was to educate the membership on the ethical principles of expert testimony, i.e., that it should be fair and impartial, etc. The second goal was to create an Expert Witness Affirmation statement that asks members to attest that they will abide by certain principles in testifying.
"Over 7, 000 of our members signed this document, something that has often cropped up during trials. An opposing attorney might ask, ‘Are you aware of the AAOS affirmation statement and did you sign it?’ and, ‘Is your testimony in compliance with that statement?’”
“Why stop at the courtroom?” they thought. Dr. Goodman notes, “It became apparent that there were issues in other arenas, so we began exploring a set of minimal standards for professionalism. Today we have standards covering six topics: Advertising by Orthopedists, Providing Musculoskeletal Services, Professional Relationships, Expert Witness Testimony, Industry Conflicts of Interest, and Research and Academic Responsibilities. As the process evolved, the Board determined that only an AAOS member could file a grievance against any other AAOS Member for a perceived violation of the standards, and that the COP would hear both sides of the story; we then would make a recommendation to the Board of Directors. Early on we decided that it was most appropriate to do this in stages…merely because someone files a grievance doesn’t mean it should escalate to a board level.”
It is important, of course, to sort out the situations that merit attention versus those that resemble playground finger pointing. Dr. Goodman: “Any complaint is first screened by the General Counsel’s office to determine if it is valid. For example, the general counsel will examine whether the expert witness testimony was given after the standard of professionalism was enacted, and whether or not there is documentation of what allegedly happened. Only after this step does the issue come before the COP, at which point we review all of the available information provided by both parties. We then decide whether there is sufficient evidence of a violation of a Standard of Professionalism in order to hold a hearing. This is called prima facie determination. If we see a potential violation then both parties are notified that there will be a hearing.”
“Each side is allowed 30 minutes to make a presentation and 5 minutes to question the other party. Each person may have an attorney present, as well as another physician or witness. Then the COP meets and discusses each of the allegations. If we determine that there was a violation of the Standards of Professionalism, then we decide what, if any, disciplinary action to recommend to the BOD.”
So how to decide whether the person receives a serious wag of the finger or, for example, a more significant punishment—expulsion from the membership? Dr. Goodman: “One physician was suspended for a year because he testified too narrowly about the standard of postoperative care regarding the timing of beginning formal physical therapy; he failed to review medical records that he should have known were available and that contained important information which called his testimony into question. Some of his testimony before the committee clearly contradicted his previous sworn testimony. Another physician was disciplined because of his narrow interpretation of the standard of care regarding leg length discrepancy following total hip arthroplasty. Other witnesses were not disciplined when it became apparent that their testimony was accurate and that the Grievant (person submitting the complaint) was actually the one who deviated from the standard of care.”
“There may be no disciplinary action or there may be censure, which involves an official letter to the person, as well as publication to the membership of what has transpired. If the person is suspended (which may last up to three years) or expelled from the membership, then his or her name by law must be reported to the National Practitioner Data Bank (this does not happen at the COP stage, but only if the BOD takes the recommended action). We then issue a full report and both parties are notified of the decision and of the fact that either can appeal. If this happens, then the AAOS Judiciary Committee will hear the appeal (but not new evidence). They are looking to verify that due process was afforded to both individuals and that the weight of the evidence supports the recommendations of the COP. After the Judiciary Committee weighs in then the issue goes before the BOD, which decides whether there should be disciplinary action.”
So what if after the prima facie stage Dr. A is still insistent that Dr. B acted improperly? “If the COP finds that there was no prima facie evidence then the surgeon making the complaint can post a bond to pay the expenses and force the committee to continue. This has happened on two occasions, both in relation to expert witness testimony. As you can imagine, this can drag on for quite some time. In Massachusetts, for example, a malpractice case takes an average of six years, meaning that the defendant carries this accusation a long time. This person can get bitter and think, ‘I went through all this because some expert witness said I did something wrong, but in fact he testified incorrectly.’ This raises the point that the COP must adhere to its mission. In a situation such as the one above, the surgeon may say, ‘I testified that XYZ was the standard of care and the jury agreed with me.’ It is a delicate balancing act because the COP is not in the business of retrying cases.”
Surgeons, says Dr. Goodman, must take care not to fall prey to a slippery slope on the witness stand. “Expert witnesses tend to become advocates, so one of the COP’s principles is that testimony should be fair and impartial."
We tell surgeons that if they are giving their opinion they should clearly state that it is opinion…and that if it differs from the majority opinion then they should explain why.
"The standard of care may not always be clear, but that in itself should be made clear. Attorneys often tell surgeons that using terms such as ‘always’ and ‘never’ makes for a stronger case, but use of those words can put a witness in jeopardy. It is more prudent to make it clear that in XYZ clinical situation there is more than one acceptable way to deal with a problem.”
Dr. Peter Mandell, the original Chair of the Committee on Professionalism, is philosophical. He states, “For the longest time there were no checks and balances on what people were doing on the professional side of things. Everyone was expected to act in a professional manner, but there was no roadmap. There were ethical guidelines, but they had no ‘teeth.’ The AAOS Ethics Committee had formulated outlines of what doctors should and should not be doing, but on many occasions these outlines were being interpreted differently.”
And then there are the egregious transgressions. Dr. Mandell: “On occasion you have a situation where two doctors get into an altercation over a patient in the ER or the OR. In such cases you have to take into consideration whether or not there was a history of fighting or tension between the two. Fortunately, these situations are rare.”
As time moves on, says Dr. Mandell, those entering the field today have a different outlook on receiving guidance from various governing bodies. “Those of us who went into medicine around the 1960s and 1970s did so because being a professional meant being in charge…being independent and having the authority to customize the appropriate treatment to each patient. With the new healthcare environment there are numerous entities looking over the shoulders of doctors in every area. While that is a real shift for doctors of my generation, the younger folks don’t seem to mind and are in fact pretty accustomed to being told what they can and cannot do.”
On the whole, the picture is a positive one, says Dr. Goodman.
Since the program went into effect in April 2005 there have been 80 grievances submitted, 30% of which did not make it beyond the General Counsel’s office. We have held 39 hearings and have had 19 official actions by the Board of Directors—14 suspensions and 5 censures.
"I’m proud that the work of the committee results in more standardized and high level professional behavior on the part of our colleagues. In the end, the patients are the biggest winners. Hopefully this program will educate our members and encourage them to testify in a fair and impartial manner rather than to discipline individuals.”