AAOS Board Considers Grievances Filed Under the Professional Compliance Program

At its meeting on Sept. 15, 2018, the AAOS Board of Directors considered two grievances filed under the AAOS Professional Compliance Program. The following actions were taken:

Herbert I. Hermele, MD
Fairfield, Conn.
One-year suspension

In July 2016, a grievance alleging violations of the Standards of Professionalism (SOP) on Orthopaedic Expert Opinion and Testimony was filed against Herbert I. Hermele, MD. The grievance was based on statements made by Dr. Hermele in his trial testimony. The underlying matter involved a 21-year-old patient who injured her ankle in a motor vehicle accident. The admitting diagnosis was a grade II fracture, and the patient underwent open reduction internal fixation (ORIF) of the trimalleolar fracture. The patient was subsequently diagnosed with osteomyelitis and lupus, and she went on to have multiple surgeries, including an ankle fusion.

After thorough consideration, the Committee on Professionalism (COP) Grievance Hearing Panel and the Judiciary Committee found that Dr. Hermele was in violation of Mandatory Standards Nos. 1, 2, and 4. In both panels’ opinions, Dr. Hermele violated Standard No. 1 when he testified that the medical treatment fell below the standard and based that opinion on his unsupported assertion that the patient’s wound was closed after the ORIF procedure. The medical record noted that the medial wound was closed along the edges, but the wound of compounding was packed with sterile gauze and left open. Additionally, Dr. Hermele testified that osteomyelitis does not respond to antibiotics.

Furthermore, Dr. Hermele opined that the injury was a grade III and should have been treated differently. Dr. Hermele testified that the patient’s osteomyelitis was “more likely than not” related to the initial ORIF procedure and the wound, in his opinion, having been “closed.” He also testified that the patient would not have been at risk for osteomyelitis if an external fixator and staged reconstruction had been performed. Both panels found this testimony to be in violation of Standard No. 2 (it was not fair and impartial) and Standard No. 4 (it condemned performance that fell within generally accepted practice standards).

The Judiciary Committee found that Dr. Hermele violated Standard No. 6. The committee concluded that he should have requested and thoroughly reviewed the records prior to rendering an opinion that the patient’s late onset of osteomyelitis was more likely than not related to the initial procedure. The patient’s long medical course with many subsequent procedures and lupus diagnosis were all relevant to the formation of an expert opinion in this matter. The COP and the Judiciary Committee did not find violations of Standards Nos. 3 and 5, as had been alleged.

The AAOS Board of Directors upheld the findings of the Judiciary Committee and voted to suspend Dr. Hermele for one year due to unprofessional conduct in the performance of expert witness testimony.

Stephen A. Mikulak, MD
Newport Beach, Calif.
Censured

In October 2016, a grievance alleging violations of the SOP on Orthopaedic Expert Opinion and Testimony was filed against Stephen A. Mikulak, MD. The grievance was based on statements made by Dr. Mikulak in an affidavit and deposition testimony. The patient in the underlying matter was a 47-year-old woman who suffered a bilateral crush injury, greater on the right, while working as a date picker. The patient subsequently developed a vascular complication and had an above-knee amputation.

After thorough consideration and deliberation, the COP Grievance Hearing Panel and the Judiciary Committee found that Dr. Mikulak violated Standard No. 4 when he opined that an arteriogram should have been ordered but discounted the vascular examination findings and the patient’s level of pain at the time of the grievant’s examination in the emergency room. The panels found that Dr. Mikulak condemned performance that was within acceptable practice standards, because the record was devoid of any documentation supporting a causal relationship between the grievant’s examination and the patient’s medical outcome. The COP and the Judiciary Committee did not find violations of Standards Nos. 1 and 5, as had been alleged. The Judiciary Committee disagreed with the COP’s conclusions as to Standard No. 3, finding instead no violation of that standard.

The AAOS Board of Directors upheld the findings of the Judiciary Committee and voted to censure Dr. Mikulak for unprofessional conduct in the performance of expert witness testimony.

Additional actions not related to the AAOS SOP

At its meeting on Sept. 15, 2018, the AAOS Board of Directors considered the following matters not related to the AAOS SOP and took the actions indicated.

Philip Sobol, MD
Studio City, Calif.
Expelled

In February 2018, Dr. Sobol was convicted of two felony counts: conspiracy to commit mail fraud and using interstate facilities in the aid of racketeering.

The AAOS Board of Directors voted to expel Dr. Sobol.

Donald Ozumba, MD
McKinney, Texas
Expelled

In July 2018, Dr. Ozumba was convicted of a felony of aggravated sexual assault and sentenced to 10 years in prison.

The AAOS Board of Directors voted to expel Dr. Ozumba.

For more information on the AAOS Professional Compliance Program, visit www.aaos.org/profcomp.

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