Published 4/1/2008

Board issues censure in professional compliance case

At its March 3, 2008, meeting, the AAOS Board of Directors considered one grievance under the AAOS Professional Compliance Program. Based on the information presented and the recommendation of the Committee on Professionalism (COP), the Board censured Margaret M. Baker, MD, of Port Angeles, Wash., for violation of specified Mandatory Standards under the Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony.

Grievance background
In February 2007, a grievance was filed against Dr. Baker, alleging a violation of six Mandatory Standards of the SOPs on Orthopaedic Expert Witness Testimony. The grievance alleged violations of the following Standards:

No. 3: An orthopaedic expert witness shall evaluate the medical condition and care provided in light of generally accepted standards at the time, place and in the context of care delivered.

No. 4: An orthopaedic expert witness shall neither condemn performance that falls within generally accepted practice standards nor endorse or condone performance that falls outside these standards.

No. 5: An orthopaedic expert witness shall state how and why his or her opinion varies from generally accepted standards.

No. 7: An orthopaedic expert witness shall have knowledge and experience about the standard of care and the available scientific evidence for the condition in question during the relevant time, place and in the context of medical care provided and shall respond accurately to questions about the standard of care and the available scientific evidence.

No. 8: An orthopaedic expert witness shall provide evidence or testify only in matters in which he or she has relevant clinical experience and knowledge in the areas of medicine that are the subject of the proceeding.

No. 12: An orthopaedic expert witness shall be engaged in the active practice of orthopaedic surgery or demonstrate enough familiarity with present practices to warrant designation as an expert.

Case details
Dr. Baker was the expert witness for a plaintiff who alleged that she was left with numbness and weakness in the distribution of the peroneal nerve as a result of carelessness and negligence during a surgical procedure. The injury occurred during an operative procedure to reconstruct the lateral collateral ligament of the knee following the failure of a primary repair in a markedly obese woman. The jury trial returned a verdict in favor of the defendant-orthopaedic surgeon.

During deposition and court testimony, Dr. Baker testified as follows:

  • She has cared for three or four knee dislocations since she completed her residency and began her practice.
  • She did not believe that malpractice had been committed any time a nerve injury occurred.
  • The defendant-orthopaedic surgeon deviated from the standard of care in the second surgery because “a reasonable and prudent surgeon in the same situation would have found the nerve. We usually go proximally in normal anatomy, trace it distally, and carefully dissect it out and protect it and keep it out of harm’s way for the whole case. And in his operative note, he notes that there’s some degree of damage to the nerve that he attempted to suture and repair, and from immediately post-op she had a significant, you know, fairly severe peroneal nerve palsy with both motor and sensory deficits. So it wasn’t just some minor ding or bruise or stretch. I mean, it was a major injury.”
  • Despite the defendant-orthopaedic surgeon’s identification of the nerve and his attempt to protect it, “a technical error was done and there was a major injury to the nerve, and, in my opinion, to the point that the nerve fibers themselves died.”
  • It would be speculation to say whether the nerve dysfunction came about as a result of a laceration alone or a stretch or a combination thereof.
  • “When the injury occurs from his scalpel or his retractor or at his hand, then, yes, I feel that that’s a standard of care breach.”
  • The orthopaedic surgeon “was not careful enough with the nerve, and he caused harm to the patient.” Dr. Baker could not quantify how ‘not careful enough’ the orthopaedic surgeon was because she was not there.

When asked if, despite all best efforts by an orthopaedic surgeon, a nerve injury could occur, Dr. Baker responded, “It could, you know. A meteor could hit the building or an operative light could fall down or a nurse could pass out and hit the nerve. I mean, yes, there are untoward complications that can happen just through no one’s fault, and yet there are other complications that can happen as a result of technical error by the surgeon or his assistant, and I think this is a case of the latter.”

Dr. Baker also testified that calculations using the Pythagorean theorem of geometry indicated the orthopaedic surgeon stretched the peroneal nerve by 28 percent of its resting length by moving it 4 cm, but she failed to acknowledge that the knee was flexed at surgery, which would make the calculations inaccurate.

Grievance Hearing
The COP hearing was held in October 2007; Dr. Baker appeared with counsel. The Grievant also appeared. The COP Grievance Hearing Panel (COP Panel) found that Dr. Baker violated Mandatory Standard Nos. 3, 5, and 7 and made a recommendation that the Board of Directors censure Dr. Baker. The COP Panel agreed on the following points:

  • Judges and juries rely on medical experts to state clearly the generally accepted standards of orthopaedic surgery. Dr. Baker did not meet those expectations in this case. She implied that the mere presence of an intraoperative nerve injury represented a departure from the standard of care.
  • Dr. Baker did not state how and why her opinion varied from generally accepted standards.
  • Dr. Baker made statements concerning nerve stretch that were geometrically correct but that could not be supported by the facts of the surgical positioning of the patient, which she should have known. She used these theories to advance her argument relating to the cause of the nerve palsy when the veracity of the departure from the standard of care regarding the inadvertent laceration was questioned. She selectively ignored the relaxation of the nerve afforded by knee flexion.

The COP Panel found that Dr. Baker did not violate Mandatory Standards Nos. 4, 8, and 12.

Neither the Grievant nor Dr. Baker appealed the COP Panel’s recommendation to the Judiciary Committee.

On March 3, 2008, after considering the recommendations of the COP Panel, the AAOS Board of Directors voted to censure Dr. Baker. Censure is a written reprimand from the American Association of Orthopaedic Surgeons that becomes part of the Fellow’s permanent record and is announced to the AAOS Fellowship. Fellows, members and lawyers can obtain information about the censure. Censure does not result in any loss of Fellowship benefits and is not reported to the National Practitioner Data Bank.