When Surgeons Get Into Trouble

Terry Stanton

When an orthopaedist gets into trouble, the compliance apparatus of the AAOS gets to work. Serving on the committees that administer allegations of professional lapses is no one’s idea of glamour or light duty but enforcing standards of conduct is a professional obligation, as Thomas M. Green, MD, noted in introducing a Wednesday symposium devoted to lessons learned from the AAOS professional compliance program. The session also included a presentation on the issue of substance addiction among physicians.

Dr. Green, who serves on the Judiciary Committee, noted that a profession has the duty to discipline and dismiss members for failure to observe professional duties and responsibilities, as part of its promise to behave in a certain way to benefit society and the public interest.

For the AAOS, that function is largely carried out by the Committee on Professionalism (COP) and the Judiciary Committee. These committees make recommendations for professional compliance actions to the Board of Directors, which makes the final determination.

The AAOS has had a formal professional compliance program since 2005, explained Edward V. Craig, MD, who also serves on the Judiciary Committee. It first took shape when the fellowship adopted bylaw amendments establishing the framework of the program and three initial Standards of Professionalism (SOPs): “Providing Musculoskeletal Services to Patients,” “Professional Relationships,” and “Orthopaedic Expert Witness Testimony” (now “Orthopaedic Expert Opinion and Testimony”).

According to Past President Joseph D. Zuckerman, MD, the AAOS professional compliance program was modeled after a program established by the American Association of Neurological Surgeons (AANS) in 1983.

The annual administrative cost of the AAOS professional compliance program is substantial, noted Dr. Zuckerman—about $450,000, or about $2.4 million since inception of the program. In addition, the AAOS’s out-of-pocket litigation costs have been about $1.6 million after accounting for insurance payments.

“Would we have started this had we known the cost?” he asked. “Have we had an impact on professionalism and our specialty? These are important questions.”

How the process works
The AAOS professional compliance program involves three levels of due process—hearings before the COP, the Judiciary Committee, and the Board of Directors. Under the program, a Fellow or Member may file a complaint against another Fellow or Member, alleging violation of one or more of the SOPs. After an administrative review by the AAOS Office of General Counsel, the COP first weighs whether the complaint meets basic prima facie requirements for a subsequent hearing. The person cited in the complaint—the Respondent—is given the opportunity to present material for consideration. If the committee rejects the claim, the person filing the claim—the Grievant—may demand a hearing but must post a payment to cover expenses; this is refunded if the grievance is upheld.In a COP hearing, either party may challenge the composition of the hearing panel. In addition, witnesses and counsel are allowed 30 minutes per side.If the Grievant or Respondent wish to challenge the report and recommendations of the COP, he or she may appeal to the Judiciary Committee. Any final official action—which may be censure, suspension, or expulsion—must be taken by the Board of Directors, upon the recommendaiton of the COP and the Judicary Committee.

Since the program’s founding, 136 grievances have been submitted and 53 of those have been heard by the COP. The Board has taken official action in 31 cases, resulting in 9 censures and 22 suspensions.

Expert Witness cases
Much of the activity of the AAOS professional compliance program has addressed incorrect or fraudulent expert witness testimony. In these cases, Dr. Craig noted that complaints frequently cite the SOPs that require experts to provide opinions in a fair and impartial manner, have knowledge of the standard of care, and have evidence for the opinion offered.

Murray J. Goodman, MD, chair of the COP,provided the following tenets for expert witnesses who wish to avoid being brought before the COP:

Be truthful.
Be fair and impartial.
Follow generally accepted standards.
Review all records.
Have adequate knowledge.
Do not misrepresent your credentials or experience.
Do not make your payment contingent upon the outcome of the case.

Advertising, Industry SOPs
Although expert witness cases predominate, complaints involving the SOPs on advertising and industry relationships are also common. The standards for advertising follow guidelines from the Federal Trade Commission regarding unfair and misleading claims. For example, physicians and their practices should be careful about using superlatives such as “among the first in the United States,” “offers faster recovery and less pain,” and “recognized as a top orthopaedic surgeon.”

Members should be acquainted with laws and policies regarding industry relationships and with ethical principles governing clinical research. Dr. Goodman reminded researchers that the principal investigator must ensure that results are reported truthfully and honestly with no bias or influence from funding sources, regardless of positive or negative findings.

Licensure Matters
Richard D. Schmidt, chair of the Judiciary Committee, explained the impact of licensure review. Licensure issues involve state medical board actions against physicians as well as criminal actions. A valid, unrestricted license is required for AAOS membership. If the AAOS becomes aware of a licensure matter regarding a Fellow or Member, the Judicairy Committee will automatically investigate and develop a recommendation for Board action, based on the state board’s decision. Often, the length of the AAOS suspension corresponds to the length of the state board’s sanction.

The impaired physician
Cases involving substance abuse and addiction can be more problematic, Dr. Schmidt said. Among the “guiding principles” the Judiciary Committee follows are to weigh if the physician’s addiction is self-reported and if the individual has accepted responsibility. The committee also gives consideration whether the state has a physician health program (PHP) or similar diversion program.

According to Gary D. Carr, MD, states with such programs have been more successful in rehabilitating physicians than those with more punitive approaches. The AAOS system also weighs whether its action will have a positive or adverse impact on the member’s recovery.

Gary D. Carr, MD

Dr. Carr, who is board certified in addiction medicine, provided some grounds for optimism in addressing the problem and achieving positive results. For example, among physicians who participate in state PHPs, the relapse rate over 7.2 years is just 22 percent—much better than in the general population. He also noted that reports of “impaired” physicians causing harm to patients by overprescribing is extremely rare.

“Just telling an addict not to do it will not work. We have viewed addiction as volitional behavior,” he said. “We are concerned these doctors will hurt someone. As a society, we want it to be a cognitive process, and it’s not. We equate ‘illness’ and ‘impairment,’ which we should not do. Impairment is a functional classification.

“Punitive systems drive addicted doctors underground,” he continued. “I’ve interviewed many addicted physicians whose patients and partners had no idea they had a problem.

“Addiction wants to isolate you, and then kill you,” Dr. Carr said. “Addicted people always feel different from their colleagues. We need to embrace and get them back on their feet.”

Of the total licensure cases reviewed by AAOS, 23 percent involved substance abuse, and of these cases, 22 percent resulted in suspension, 31 percent in expulsion, and 47 percent in no action.

Disclosure information: Dr. Green—Washington State Medical Quality Assurance Commission. Dr. Craig—Biomet, Wolters Klower Health–Lippincott Williams & Wilkins; Dr. Goodman—Amgen, Merck, Pfizer, Procter & Gamble, Stryker, Emmi Solutions; Dr. Zuckerman--Exactech, Neostem, Joint Innovation Technology, SLACK Inc., Thieme, Wolters Kluwer Health–Lippincott Williams & Wilkins; Dr. Schmidt—Medtronic, Merck. Dr. Carr reported no conflicts.

2013 Annual Meeting News
Tuesday through Friday, February 19 – 23, 2013.
http://www.aaos.org/news/acadnews/2013/AAOS13_3_21.asp