On Sept. 26, 2009, the AAOS Board of Directors considered three grievances filed under the Professional Compliance Program. Two of the grievances alleged violations of the Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony and one of the grievances alleged violations of the SOPs on Professional Relationships.
After thorough consideration of all information and testimonies presented and upon the recommendation of the Judiciary Committee and/or the Hearing Panel of the Committee on Professionalism (COP), the Board determined that official action was warranted in one case and that the following actions were warranted against two Fellows for violations of the SOPs on Orthopaedic Expert Witness Testimony:
- S. Andrew Schwartz, MD (Los Angeles)–2-year suspension
- Michael R. Treister, MD (Chicago)–censure
Michael R. Treister, MD
On Feb. 25, 2008, a grievance was filed against Dr. Treister alleging violations of Mandatory Standards Nos. 1, 2, 4, 6, and 9 of the SOPs on Orthopaedic Expert Witness Testimony. The grievance arose from statements made by Dr. Treister in an Affidavit of Merit and during deposition as the plaintiff-patient’s medical expert in a case of negligence. The plaintiff-patient alleged that the defendant-orthopaedic surgeon had failed to properly diagnose and repair, in a timely manner, a dural leak. The claims of the plaintiff against the defendant were eventually dismissed with prejudice.
The patient, a 61-year-old man, underwent posterior decompressive laminotomies on the right at L4-5 and L5-S1. He was known to have a 7-month history of intermittent urinary retention prior to surgery. The postoperative course of treatment was complicated by urinary retention and required placement of a Foley catheter on the night of surgery. The patient was discharged 2 days after the surgical procedure.
On the following day, the patient went to the emergency department (ED), complaining of a suboccipital headache that increased in severity when he stood up. In addition, the patient noted drainage from the lumbar incision. He did not complain of fever, nausea, vomiting, or neurologic change, and the Foley catheter was documented as being in place.
The patient was diagnosed with a spinal fluid leak and admitted for surgical repair. The following day, an incision and débridement of the lumbar wound and repair of a dural tear was performed. The spinal fluid leak persisted and the patient was treated with an epidural catheter, an abdominal binder, and pressure dressing. Conservative measures failed and, one month later, the patient underwent surgery for removal of a pseudomeningocele and repair of a dural leak. The outcome was successful and the spinal fluid leak was resolved.
On Oct. 24, 2008, the COP Hearing Panel conducted a grievance hearing at which both parties and their legal counsels were present. After careful evaluation of all material submitted and oral testimony during the proceedings, the COP Hearing Panel found Dr. Treister in violation of only Mandatory Standards Nos. 1, 2, and 4, of the SOPs on Orthopaedic Expert Witness Testimony. The COP Hearing Panel recommended a 1-year suspension.
Dr. Treister appealed the recommendation of the COP Hearing Panel and on July 31, 2009, the Judiciary Committee conducted an appeal hearing. Dr. Treister was present at the hearing and the Grievant submitted a written statement. The Judiciary Committee unanimously determined that due process had been afforded Dr. Treister and agreed with the COP Hearing Panel that Dr. Treister had violated Mandatory Standards Nos. 2 and 4.
In agreeing with the COP Hearing Panel, the Judiciary Committee stated that Dr. Treister’s Affidavit of Merit was not fair and impartial and that the expert witness opinions drafted by the attorney and signed by Dr. Treister were far too broad in scope. During the appeal hearing, Dr. Treister also contradicted his statement that the defendant had injured the patient during surgery through his use of surgical instrumentation.
With regard to Mandatory Standard No. 1, the COP Hearing Panel opined that Dr. Treister knew or should have known that urinary retention was present preoperatively and that it was not an indication of a dural leak. The Judiciary Committee, however, determined that Dr. Treister’s testimony was speculative and biased, but that there was insufficient evidence to determine it was intentionally false. Consequently, the Judiciary Committee, by majority vote, deviated from the COP Hearing Panel’s finding that Dr. Treister had violated that Standard. The Judiciary Committee resolved that Dr. Treister’s violations of Standards 2 and 4 did not warrant a suspension and recommended an official censure.
When the AAOS Board of Directors considered this matter, the Grievant submitted a written statement and Dr. Treister made a personal appearance. After comprehensive evaluation and discussion, the Board upheld the findings and recommendation of the Judiciary Committee and voted to censure Michael R. Treister, MD, due to unprofessional conduct in the performance of expert witness testimony.
S. Andrew Schwartz, MD
On March 28, 2008, a grievance was filed against Dr. Schwartz alleging violations of Mandatory Standards Nos. 2, 3, 4, 6, and 7 of the SOPs on Orthopaedic Expert Witness Testimony. The grievance arose from statements made by Dr. Schwartz in a written review of medical records used to file meritorious cause of action for a medical liability lawsuit. In his report, Dr. Schwartz contended that the defendant-orthopaedist fell below the standard of care in management of an ankle injury. The claims against the defendant were later dismissed for want of prosecution.
The patient was a 73-year-old man previously known to the defendant. His medical history included a recent right below-knee amputation and long-standing diabetic neuropathy and venous stasis. Significantly, records also revealed numerous incidents of patient noncompliance.
Approximately 1 week following an injury described as “twisting” his ankle, the patient went to an ED where he was diagnosed with a closed, nondisplaced left distal fibula fracture. Two days later, he was seen by the defendant, who noted that the patient had been full weight bearing for 8 days. Immediate use of a double-upright fracture boot and walker with touch-down weight bearing were recommended.
Records indicated the patient’s refusal of a cast for immobilization and, as reported in follow-up visit notes 1 week later, noncompliance with the recommendations. Documentation also reflected discussion of the risks in failure to comply with treatment, including skin breakdown, infection, Charcot joint, and/or amputation. The orthopaedist assisted the patient with acquiring a fracture boot after the patient stated financial reasons for refusal. Follow-up included phone calls and two additional office visits. Records reflected a continued refusal for casting and/or use of an assistive device for protected weight bearing. Radiographs showed interval healing without a change in position and a 1-month follow-up was planned; however, the patient did not return to the defendant.
One week following the last office visit to the defendant, the patient went to a second hospital complaining of foot pain and an inability to walk. He described a sudden lateral shifting in his left ankle and foot and was diagnosed with a comminuted fracture of the distal left tibia as well as a healed fracture of the fibula. The next day, the patient underwent an open reduction and internal fixation (ORIF) of the left distal fibular fracture and Collagraft® augmentation and ORIF of the left distal tibial articular fracture.
Approximately 1 month postoperatively, the patient exhibited wound problems and a loss of fixation. A revision ORIF was performed. Two months later, wound problems reappeared and, shortly afterward, the patient underwent débridement for osteomyelitis with hardware removal and external fixator applications. The fixator was removed 3 months later.
In his written report, Dr. Schwartz stated that the defendant’s recommendations for touchdown weight bearing with a walker for immediate use of a double upright fracture boot was below the standard of care because the patient “obviously came into his office without any ancillary aids or immobilization” and should have been placed in at least a temporary cast or given crutches. Furthermore, Dr. Schwartz opined that the defendant fell below the standard of care by “allowing the patient to leave his office without some type of protection” and should have “insisted the patient be in a cast without taking no for an answer.”
Dr. Schwartz also declared that the best-case scenario would have involved placing the patient in a wheelchair and taking him to the orthotic clinic for the fracture boot. He continued, “[the] most unforgiving failure was to leave the patient out of the immobilization before the fracture could be anywhere near healed and let him essentially weight bear as tolerated on an unprotected ankle. This has led to significant subsequent problems, and this patient is at risk for losing this leg as well because of this.”
On Oct. 24, 2008, the COP Hearing Panel conducted a grievance hearing at which both parties and their legal counsels were present. Dr. Schwartz stated that he had relied significantly on the patient’s statements in forming his opinion and that the patient indicated that the “doctor told him that his ankle did not need to be immobilized after the fourth week.” Dr. Schwartz acknowledged that the Charcot joint was from the patient’s diabetes and not a result of the surgery and infection, but he iterated that the patient required the surgery due to the failure to immobilize an unstable fracture.
Dr. Schwartz also asserted that the law firm had misused his letter and that he had asked for additional records to review. When asked by the Hearing Panel whether his written report included any statement about the need for additional records before forming his opinion, however, Dr. Schwartz replied that it did not.
After careful evaluation of all material submitted as well as oral testimony given by both parties during the proceedings, the COP Hearing Panel found Dr. Schwartz in violation of Mandatory Standards Nos. 2, 3, 4, 6, and 7 of the SOPs on Orthopaedic Expert Witness Testimony. In making its recommendation, the COP Hearing Panel considered that Dr. Schwartz formulated his expert opinion on the basis of a phone conversation with the patient and chose to ignore information present in the medical record.
The Hearing Panel also found that Dr. Schwartz had disregarded the patient’s extensive history of noncompliance, misrepresented the standard of care as it pertains to dealing with noncompliant patients and physician obligation, misrepresented and/or misinterpreted the medical record to indicate that the patient was not receiving proper orthopaedic care, misinterpreted and/or misrepresented the radiographic findings, misrepresented the causation of a Charcot joint, and did not review important medical records prior to reaching condemning conclusions. The COP Hearing Panel recommended that Dr. Schwartz be suspended from the AAOS for a period of 2 years.
Dr. Schwartz appealed the recommendation of the COP Hearing Panel and on July 31, 2009, the Judiciary Committee conducted an appeal hearing. The Grievant was present; however, Dr. Schwartz did not appear or submit a written statement. The Judiciary Committee unanimously determined that due process had been afforded Dr. Schwartz and that the clear weight of evidence supported the COP Hearing Panel’s recommendation.
In its report, the Judiciary Committee further stated that Dr. Schwartz did not offer his expert opinion in a fair and impartial manner because his written report relied significantly on phone conversations with the patient that occurred 2 years post-injury and ignored factual information present in medical records prepared contemporaneously with the injury.
On Sept. 26, 2009, the AAOS Board of Directors considered this matter. The Grievant was present and Dr. Schwartz submitted a written statement. After careful deliberation and discussion, the Board upheld the findings and recommendations of the COP Hearing Panel and Judiciary Committee and voted to suspend S. Andrew Schwartz, MD, for 2 years because of unprofessional conduct in the performance of expert witness testimony.
SOPs on Orthopaedic Expert Witness Testimony
- An orthopaedic expert witness shall not knowingly provide testimony that is false.
- An orthopaedic expert witness shall provide opinions and/or factual testimony in a fair and impartial manner.
- 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.
- 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.
- An orthopaedic expert witness shall state how and why his or her opinion varies from generally accepted standards.
- An orthopaedic expert witness shall seek and review all pertinent medical records related to a particular patient prior to rendering an opinion on the medical or surgical management of the patient.
- 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.
- 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.
- An orthopaedic expert witness shall be prepared to state the basis of the testimony presented and whether it is based on personal experience, specific clinical or scientific evidence.
- An orthopaedic expert witness shall have a current, valid, and unrestricted license to practice medicine in any state or U.S. territory.
- An orthopaedic expert witness shall maintain a current certificate from the American Board of Orthopaedic Surgery (ABOS), the American Osteopathic Board of Orthopaedic Surgery, or the certifying body, if any, in the country in which the orthopaedic surgeon took his or her training.
- 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.
- An orthopaedic expert witness shall not misrepresent his or her credentials, qualifications, experience or background.
- An orthopaedic expert witness shall not agree to or accept an expert witness fee that is contingent upon the outcome of a case.
- Compensation for an orthopaedic expert witness shall be reasonable and commensurate with expertise and the time and effort necessary to evaluate and testify on the facts of the case.