Professional societies developing expert witness guidelines

Under consideration by AAOS board of directors, the proposal is modeled after initiative by neurosurgeons’ association.

Issue: January 2003

Proposed language

The advisory position passed by the American Association of Orthopedic Surgeons’ Board of Councilors regarding the professional conduct program for expert witness testimony states:

1 “Resolved, that the Board of Councilors recommends that the Board of Directors revise the Code of Ethics and Advisory Statement on Orthopedic Medical Testimony to reflect the position that there is an obligation of an orthopedic surgeon who provides medical testimony to indicate when he or she is expressing a personal view, to describe how this opinion differs from current commonly-accepted evidence-based practice, and to acknowledge that differing opinions exist.

2 “Resolved, that the Board of Councilors recommends that the Association Board of Directors implement a professional conduct program dealing with medical expert witness testimony similar to that developed by the American Association of Neurological Surgeons (AANS).

3 “Resolved, that the name of any orthopedic surgeon censured, suspended or expelled by the Association after review by the AAOS professional conduct program for medical expert witness testimony be provided to the Fellowship and appropriate regulatory bodies.”

Aiming to control rising malpractice costs and fraudulent medical testimony, several medical subspecialty organizations are developing professional disciplinary committees to ensure truthful testimony in outside legal matters.

At its annual meeting in November, the North American Spine Society passed a resolution creating a professional conduct and ethics committee, along with establishing an organizational code of ethics and expert witness guidelines.

A month earlier, the American Association of Orthopaedic Surgeons (AAOS) Board of Councilors unanimously approved a recommendation to the AAOS Board of Directors to establish a professional conduct disciplinary committee.

At its December meeting, the AAOS Board of Directors established a physician-staff project team to examine the issue. Representatives from the Board of Directors, Finance Committee, Board of Councilors, Council of Musculoskeletal Specialty Societies, Professional Liability Committee, Ethics Committee and Membership Committee will meet and make a recommendation to the AAOS Board of Directors at its June 2003 meeting.

The earliest a new professional conduct program could be adopted by the AAOS membership if a bylaw change is required is February 2004.

Currently, the AAOS has a code of medical ethics and professionalism, but there is no punishment for those who violate that code as it relates to expert medical witness testimony. Passing the current recommendation would give the AAOS the power to censure, suspend or even expel members proven guilty of violations.

“The issue is that there are people who give testimony on the opposing side,” said Norman Schachar, MD, chairman of the Board of Councilors’ Resolution Committee. “They give their personal opinion without necessarily backing it up. They have credentials, and then they give opinions that are not necessarily evidence-based or widely held. This has become a problem in many of the medico-legal areas.”

Neurologists were inspiration

So why have so many specialty societies, such as the American College of Surgeons and the American Association of Ophthalmology, taken such action?

“What I think the genesis of our interest is, at least for some of our members, deals with the neurosurgeons’ program,” said Richard Peterson, general counsel for the AAOS. “Their program had been around for a long time, but it had never really been tested in court and no one really knew if it would withstand the test of litigation. But when it was recently upheld, that’s when I think some of our members started to look at it more closely.”

The American Association of Neurological Surgeons (AANS) has had a professional conduct committee since 1983, set up for many of the same reasons then as others are considering today. At that time, AANS Executive Director Carl Hauber, MD, approached the organization’s general counsel, Russell M. Pelton, about forming a professional conduct program to give some teeth to the AANS’ ethical standards.

Soon thereafter, it was adopted by the AANS membership.

29 cases

Since 1983, the AANS has seen 29 cases go before its professional ethics committee, 24 involving improper legal testimony. Of those 29 cases, 19 have resulted in sanctions — 11 letters of censure, seven suspensions and one expulsion.

Three lawsuits have been filed in U.S. courts by those found guilty by the AANS review board. In all three cases, the AANS prevailed.

The most recent case, and the one that sparked the most interest from the other subspecialties, involved a neurosurgeon who was suspended for six months. The neurosurgeon, Donald C. Austin, MD, sued the AANS claiming that he was denied due process and, more importantly, that the AANS program violated public policy by discouraging physicians from testifying for plaintiffs in medical malpractice cases.

The Seventh Circuit Court rejected Austin’s claims, instead lending its support to the AANS’ effort to police itself. Austin later resigned from the AANS. Seventh circuit court Chief Justice Richard Posner wrote in his February 2002 decision that AANS “knows a great deal more about anterior cervical fusion than any judge” and that judges need the help of professional associations in screening experts.

Once that decision was handed down, Pelton said he was hit with a barrage of phone calls from other organizations hoping to mirror the AANS program.

“I fully expect that within the next year or two, you’re going to have the majority of specialty societies adopt something like this,” Pelton said. “The [American Medical Association] has encouraged this program, but they think that because of the varieties of specialties in the AMA, it would be impractical to address on the AMA level.”

Money matters

Even though some of the legal hurdles have been cleared, the proposal is likely to be met with some reservation by AAOS members concerned about the cost.

According to Pelton, 70% of the AANS’ litigation costs have been covered by the organization’s insurance policy, leaving $210,000 to be covered by the association over five years. Per year, Pelton said that the AANS spends about $61,000 on attorney fees, staffing hours and travel.

The AANS is approximately one-fifth the size of the AAOS, making it logical that the costs to the AAOS would be considerably more.

Peterson said he is trying to ascertain how much coverage the AAOS would get from its insurance company; he expects the annual cost of the program could exceed $100,000. He expects litigation will be filed against the AAOS at some point if the program is enacted.

“I think that we would probably win in any lawsuit, but that doesn’t mean that we’ll avoid the cost of litigation or the time involved and that’s something that the board and others will have to assess,” Peterson said.

Cost is an issue

Many longtime AAOS members probably recall the expenses incurred during legal challenges to the academy’s stringent membership process in the 1980s. Costs during the two most lengthy suits (Maresse v. AAOS and Bunzel v. AAOS) topped $1 million.

Peterson said that the memory of the massive amounts of time and money devoted to that litigation would likely play a role in the discussions surrounding the formation of a professional disciplinary committee.

Schachar emphasized that regardless of the final AAOS decision regarding a professional disciplinary committee, the organization would continue to encourage its members to testify for both sides in legal matters when they feel it is right.

“There are going to be sensitivities about this,” Schachar said. “But the Board of Councilors has found that because litigation is becoming such a huge problem in preventing us from helping patients, the widely held opinion in our group was that this was a matter of medical ethics and professionalism in orthopedic surgery.”