Three grievances result in action against three fellows
At its meeting on June 19, 2010, the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) considered several grievances filed under the AAOS Professional Compliance Program and alleging violations of the AAOS Standards of Professionalism (SOPs) for Orthopaedic Expert Witness Testimony. Based on the information presented and the recommendations of the Judiciary Committee and/or the Hearing Panel of the Committee on Professionalism, the Board issued 1-year suspensions to Bryant A. Bloss, MD, and Thomas A. Hoffeld, MD. A 3-year suspension was issued to Edwin H. Season III, MD, to run consecutively with any other professional compliance action.
Bryant A. Bloss, MD
On May 22, 2008, a grievance was filed against Bryant A. Bloss, MD, alleging violations of Mandatory Standards Nos. 1–9, 12, and 13 of the Standards of Professionalism (SOPs) for Orthopaedic Expert Witness Testimony. The grievance arose from statements made by Dr. Bloss in a medical-legal record review and opinion letter.
The opinion letter was prepared for a plaintiff-patient in a medical liability lawsuit against a defendant-orthopaedic surgeon, hospital, and hand center. The complaint asserted that the defendant-orthopaedist, in performing a carpal tunnel release procedure, severed the motor branch of the median nerve and failed to recognize and promptly repair the injury. This failure allegedly necessitated additional surgical procedures to attempt repair of the nerve, resulting in permanent loss of function, loss of earning capacity, and pain. The case was settled before trial.
In April 2005, the patient, a 45-year-old, right-hand dominant podiatrist underwent open right carpal tunnel release performed with 3.5x loupe magnification under local anesthesia and a wrist block. According to the operative note dictated on the day of surgery, the motor branch as well as all sensory branches of the median nerve were identified.
At 13 days postoperative, preoperative numbness was reportedly resolved. When the patient noted significant weakness of her thumb, an electrodiagnostic study was performed, which demonstrated no conduction and complete denervation of the abductor pollicis brevis (APB) muscle.
In May 2005, a second hand surgeon explored the median nerve, reported that the initial incision had been made over the thenar muscle crease, and noted significant scarring of the median nerve, with an interligamentous motor branch that had a “discontinuity.” The two fascicles were repaired and covered with a hypothenar flap.
Follow-up electrodiagnostic studies in January 2006 indicated severe incomplete injury to the motor branch. As of February 2008, there was no change in status and the electrodiagnostician described the injury as permanent. A Feb. 28, 2008, independent medical examiner’s report to the defense attorney documented full symmetric thenar bulk and 5/5 motor strength with opposition of the thumb to the metacarpophalangeal flexion crease of the small finger. The author of the report opined that the patient was capable of carrying out all the regular duties of a podiatrist.
In his opinion letter, Dr. Bloss stated that the defendant-orthopaedist’s “surgical treatment was a deviation from the normal standard of care, in as much as he made the incision actually right over the median nerve, too far radially. One normally makes it about half to one centimeter ulnarward from this area, and directs any cutting activity towards the ulnar side of the carpal tunnel away from the median nerve. The type of retractors that he used were not appropriate to protect the nerve.”
In response to the grievance, Dr. Bloss cited Chapter 28 of Green’s Operative Hand Surgery in support of his opinion that the incision in the palm was too far radial. He also stated that he was not suggesting that the choice of retractor was a breach of the standard of care, but was a criticism of surgical technique. His criticism was directed at the use of the Freer retractor/elevator during the surgery. It was his opinion that the Freer instrument was too small to protect the median nerve and that a tongue blade or knife handle would have been a better choice.
On July 10, 2009, the Committee on Professionalism (COP) Hearing Panel conducted a grievance hearing at which Dr. Bloss and his attorney were present. The Grievant did not attend the hearing although he was given timely notice in accordance with the Professional Compliance Program Grievance Procedures.
At the hearing, Dr. Bloss restated his opinions that the Freer elevator was not substantial enough to protect the nerve and that the incision was too far radial and a breach of the standard of care. Dr. Bloss described the incision as almost 1cm radial to the radial border of the ring finger or virtually in the middle of the long finger and directly over the median nerve and opined that the defendant-orthopaedist did not take steps to protect the median nerve.
The COP Hearing Panel found that Dr. Bloss, in his expert opinion letter, stated that the defendant-orthopaedist violated the standard of care both by the placement of the incision as well as by the use of the Freer elevator to protect the median nerve. After reviewing the operative photographs, the COP Hearing Panel determined that the incision was not in line with the axis of the middle finger but rather with the ulnar border of the middle finger. In the experience of members of the COP Hearing Panel, a deep dissection and not the placement of the incision is the more probable cause of median nerve damage. Despite due caution. a small incidence of anatomic variation of the median nerve branches and a known risk of injury to these branches from division of the transverse carpal ligament exists.
Furthermore, the literature source cited by Dr. Bloss was unpersuasive because it acknowledges “considerable variation in the length and location of the surgical incision used for carpal tunnel release” among hand surgeons. The author’s justification for incision placement is to minimize scarring over the median nerve and to avoid injury to the palmar cutaneous branch of the median nerve. Notable in this case is that the motor branch was injured.
After thorough consideration of all issues and materials in this case, the COP Hearing Panel concluded that Dr. Bloss was not fair and impartial in his criticisms and that he misrepresented the standard of care, as well as demonstrated a lack of adequate knowledge of the standard at the time, place, and in the context of care provided. The COP Hearing Panel, in finding violations of Mandatory Standards Nos. 2, 3, 4, and 7, recommended that Dr. Bloss be suspended from the AAOS for a period of 1 year. The COP did not find violations of Standards 1, 5, 6, 8, 9, 12 and 13.
Dr. Bloss appealed the recommendation of the COP Hearing Panel and, on Nov. 13, 2009, the Judiciary Committee conducted an Appeal Hearing. Dr. Bloss and his attorney attended the hearing; the Grievant did not appear or submit a written statement. After careful deliberation, the Judiciary Committee unanimously agreed that the AAOS had afforded both parties due process and upheld the findings and recommendation of the COP Hearing Panel.
The Judiciary Committee concluded that Dr. Bloss was not fair in his criticism of the incision placement, citing that the contemporaneously dictated operative note was evidence that the standard of care had been applied and that it reflected a skilled and careful surgeon. The Judiciary Committee further determined that Dr. Bloss failed to demonstrate adequate knowledge of the standard of care when answering questions posed at the Appeal Hearing.
At its June 19, 2010 meeting, Dr. Bloss appeared before the AAOS Board of Directors for its consideration of this matter. After comprehensive evaluation and discussion, the Board upheld the findings and recommendations of the COP Hearing Panel and the Judiciary Committee and voted to suspend Bryant A. Bloss, MD, for 1 year because of unprofessional conduct in the performance of expert witness opinion and testimony.
Thomas A. Hoffeld, MD
On Sept. 3, 2008, a grievance was filed against Thomas A. Hoffeld, MD, alleging violations of Mandatory Standards Nos. 2, 3, 4, 6, 7, 8, 10, 12, and 13 of the Standards of Professionalism (SOPs) for Orthopaedic Expert Witness Testimony.
The grievance arose from statements made by Dr. Hoffeld during deposition and trial testimony in a medical liability lawsuit. The plaintiff-patient alleged that arthroscopic knee surgery was performed without adequate preoperative MRI evaluation, accurate diagnosis, and informed consent regarding a microfracture procedure, ultimately resulting in a poor outcome. A jury verdict was returned in favor of the plaintiff. The defendant-orthopaedist appealed the decision and final settlement, and stipulation of Dismissal with Prejudice was rendered.
The patient was a 38-year-old female and an avid runner with a long history of left knee pain. Evaluation by the defendant-orthopaedist indicated moderate patellofemoral crepitus. The remainder of the knee examination and the radiographs were normal. The defendant-orthopaedist ordered physical therapy and Voltaren-XR with restriction of the patient’s athletic activities and introduced the concept of arthroscopy in the event that symptoms failed to improve on the nonsurgical regimen.
The follow-up exam 2 weeks later was notable for a mild effusion, discomfort on full extension, slight medial joint line tenderness, and mild patellofemoral crepitus. The patient reported little relief from the physical therapy, although she stated that the Voltaren had been effective in controlling pain. She described ongoing difficulty with her ability to perform her job duties.
In light of the lack of improvement, the defendant-orthopaedist described holding a detailed discussion with the patient regarding arthroscopic surgery and the anticipated postoperative course. A knee sleeve was provided, accompanied by the recommendations to continue home strengthening exercises and remain on the Voltaren.
During the patient’s preoperative visit, the defendant-orthopaedist described an unchanged exam and reported that the patient had continued to run and experienced swelling after each running session. The operative report documented “left knee medial femoral condyle chondral defect, synovitis, intercondylar notch ganglion cyst.” The procedure was described as “left knee arthroscopy with chondroplasty of the medial femoral condyle, partial synovectomy of all three compartments, excision of ganglion cyst.”
The medial meniscus was noted to be intact, but the medial femoral condyle chondral surface was notable for delamination of the articular cartilage with a full-thickness 10 mm x 16 mm defect in the weight-bearing portion of the condyle. This was treated with a microfracture technique, using a chondral pick to create 4 holes through subchondral bone and ascertaining that bleeding occurred.
At her first postoperative visit for suture removal, the patient had an intact neurovascular exam with little discomfort and no calf tenderness. Her knee was noted to be minimally swollen, with good range of motion and benign incision sites. The patient was encouraged to continue straight-leg and range-of-motion exercises and maintain use of crutches for ambulation.
Approximately 3 weeks postoperatively, the patient reported maintaining non–weight-bearing status and using the Continuous Passive Motion (CPM) machine at home. She reported decreasing swelling and the ability to flex her knee to 118 degrees on the CPM machine. The exam was notable for a mild effusion and range of motion from 5 degrees to 110 degrees. Physical therapy was ordered for range of motion and strengthening and the patient was instructed to resume weight-bearing in 2 weeks.
Subsequent visits at 7 and 10 weeks postoperatively were remarkable for persistent leg weakness and pain with full weight-bearing, although no effusion was present. Full range of motion was achieved at 10 weeks; however, the patient expressed concern that the knee pain was restricting her activities and preventing her return to work.
An OATS procedure was performed by the defendant-orthopaedist 12 weeks following the initial surgery utilizing a single 8 mm x 18 mm autologous osteochondral plug seated into the medial femoral condylar chondral defect. At 4½ months postoperatively, the patient reported considerable pain in the left knee despite full range of motion, identical knee circumference, and relatively normal stance and gait. Radiographs at that visit revealed that the OATS plug was intact with well-preserved joint space. An MRI revealed no definitive explanation for the patient’s ongoing symptoms. In an attempt to exhaust nonsurgical alternatives, the defendant-orthopaedist recommended a series of Synvisc injections, which afforded no immediate relief to the patient.
Eventually, the patient underwent additional surgeries by other surgeons—including arthroscopy and cartilage harvesting followed by Carticel repair, arthroscopic revision of the repaired lesion, extensive nerve ablation around the knee by a nonorthopaedic surgeon, and knee replacement—all of which failed to provide the patient with any relief.
At the time of the trial, the patient reportedly remained wheelchair-bound, was unable to work, and was continuing to seek treatment for a presumed pain syndrome of neurologic origin.
Dr. Hoffeld, in his deposition, stated he based his opinion that the microfracture procedure initiated and caused the patient’s persistent severe knee pain “mainly” on the patient’s testimony. During the trial, Dr. Hoffeld acknowledged that his conclusion that the injury was most likely a result of the first surgery was not based on anything found in the medical records, but instead was solely based on the patient’s recollection as he had read it. He also admitted to choosing when he would rely on specific content in the medical record. When questioned why he was not willing to give the same weight to something else written contemporaneously in the records, such as the patient history taken by the defendant-orthopaedist, Dr. Hoffeld responded that he had not witnessed the recorded event and, therefore, did not know what was said.
During the trial, Dr. Hoffeld opined that the standard of care required an orthopaedist to order an MRI before undertaking any invasive procedure in the knee. When asked whether this would also apply to a diagnostic arthroscopic procedure, he responded: “Well, the times that I have undertaken a diagnostic arthroscopic procedure is when the MRI, for whatever reason, hasn’t answered the question of the knee problem or when there’s been a medical or psychological contraindication to doing an MRI or other imaging study.”
Dr. Hoffeld further stated that the defendant-orthopaedist breached the standard of care by not obtaining the MRI before making the decision to perform surgery because “he could see more of the anatomy ahead of time then could have addressed these issues with the patient…one ought to have a diagnosis of what is there, what isn’t there.”
On Oct. 2, 2009, the Committee on Professionalism (COP) conducted a grievance hearing. Both parties were present, and Dr. Hoffeld was represented by legal counsel. After careful evaluation of all material submitted and the oral testimonies at the hearing, the COP Hearing Panel found Dr. Hoffeld in violation of Mandatory Standards Nos. 2, 3, 4 and 7, but not Standards Nos. 6, 8, 10, 12, and 13.
In making its recommendation, the COP Hearing Panel determined that Dr. Hoffeld was not fair and impartial in his deposition and trial testimony in repeatedly advocating for his position regarding the necessity of obtaining an MRI prior to knee surgery, nor was he fair and impartial in his acceptance of patient recollection statements as factual while giving no credence to contradictory objective evidence found in the medical records. The COP Hearing Panel concluded that Dr. Hoffeld testified as a patient advocate and not as a fair and impartial expert witness.
The COP Hearing Panel found that Dr. Hoffeld did not evaluate the medical condition and care provided in accordance with generally accepted standards at the time and in the context in which the care was delivered. In stating that the standard of care requires an MRI prior to an invasive procedure, Dr. Hoffeld condemned performance that was within generally accepted practice standards. Although he clarified his statements during the Grievance Hearing, Dr. Hoffeld did not do so during his deposition and/or trial testimony where his opinion would have been heard by those deciding the outcome of the case.
Additionally, Dr. Hoffeld, in testifying that the standard of care requires an MRI prior to an invasive procedure, did not demonstrate adequate knowledge regarding standard of care and available scientific evidence, and he repeatedly responded inaccurately to the COP Hearing Panel’s questions by representing his personal opinions as the standard of care.
The COP Hearing Panel recommended that Dr. Hoffeld be suspended from the AAOS for a period of 1year. Dr. Hoffeld did not appeal this recommendation and, on June 19, 2010, the AAOS Board of Directors considered this matter. After careful deliberation and discussion, the Board upheld the findings and recommendations of the COP Hearing Panel and voted to suspend Thomas A. Hoffeld, MD, for 1 year because of unprofessional conduct in the performance of expert witness opinion and testimony.
Edwin H. Season III, MD
On March 23, 2009, a grievance was filed against Edwin H. Season III, MD, alleging violations of Mandatory Standards Nos. 1, 2, 4, 5 and 7 of the Standards of Professionalism (SOPs) for Orthopaedic Expert Witness Testimony. The grievance arose from statements made by Dr. Season in a medical-legal written report and in trial testimony.
The statements were made in reference to a medical liability lawsuit in which the plaintiff-patient alleged that a defendant-orthopaedist failed to diagnose a slipped capital femoral epiphysis (SCFE) in a timely manner, resulting in the need for further hip surgery. The jury found that the defendant-orthopaedist was not negligent in his care of the plaintiff-patient and returned a verdict in his favor.
This orthopaedic case involved a 13-year-old male who complained of left knee pain after being pulled down by another student on Sept. 9, 1999. The injured boy went to the emergency department; knee radiograph and tomogram results were normal, and he was diagnosed as having a contusion of his left knee.
The defendant-orthopaedist first evaluated the patient 4 days later. He noted pain at the distal lateral femur, diagnosed “significant left knee pain secondary to injury,” and ordered an MRI. When he next saw the patient on Sept. 27, he noted a normal knee MRI and recommended physical therapy and progressive weight-bearing gait with a follow-up scheduled in 4 to 6 weeks.
The patient returned to the defendant-orthopaedist on Jan. 31, 2000. His condition was worse and he had greater difficulty walking, despite the use of axillary crutches and a knee immobilizer. The patient had pain over the anterior distal thigh and diminished range of motion of the hip. A radiograph revealed a displaced left proximal femoral epiphysis.
The patient was referred to a pediatric orthopaedic surgeon at a regional children’s hospital who confirmed a 75 percent slip. On Feb. 2, 2000, in situ screw fixation was performed; a corrective osteotomy was performed on Sept. 10, 2001, followed by a limb-lengthening procedure to correct 3 cm of shortening.
In his medical-legal report, Dr. Season stated that the defendant-orthopaedist “deviated from normal standards of care when he failed to evaluate and x-ray the patient’s left hip.” Dr. Season further stated that the standard of care requires orthopaedic surgeons to suspect SCFE when a child, aged 10 to 16, complains of vague knee pain. He opined that the delay in diagnosis caused a more serious and complicated condition requiring more extensive surgery and a more adverse outcome resulting in increased impairment. In his trial testimony, Dr. Season repeatedly stated that the standard of care would require a hip evaluation and radiographs whenever an adolescent between the ages of 10 and 15 with isolated knee pain is seen.
On Oct. 2, 2009, the Committee on Professionalism (COP) Hearing Panel conducted a grievance hearing with both parties present. On his own behalf, Dr. Season cited a televised grand rounds lecture that discussed a hypothetical 15-year-old boy who had knee pain following a fall, was unable to walk, and had a nonfocal knee exam. The lecturer had declared the diagnosis was SCFE until proven otherwise. During the grievance hearing, Dr. Season conceded that this lecturer, who had been the defense expert in the underlying case, had also testified in deposition that the defendant-orthopaedist had met the standard of care.
The COP Hearing Panel noted that, although Dr. Season testified on several occasions that the standard of care required the hip should be radiographed whenever an adolescent boy presents with any type of knee pain, he ultimately stated at the Grievance Hearing that this was not necessary if the hip had a completely normal exam. This was in contrast to his previous testimony. Dr. Season then claimed, in response to three different questions, that he had not changed his opinion from his trial testimony that both an exam and a hip radiograph were required. He did not acknowledge that each clinical case must be evaluated on an individual basis and that the hyperbole of a grand rounds lecture does not define the standard of care. Dr. Season’s testimony represented a closed inflexible model and did not allow for individualization based upon patient presentation.
After thorough consideration and due deliberation, the COP Hearing Panel found Dr. Season in violation of Mandatory Standards Nos. 2, 4 and 7, but not Nos.1 and 5, and recommended to the Board of Directors that Dr. Season be suspended from the AAOS for a period of 3 years.
The COP Hearing Panel’s findings were based solely upon the facts related to this specific grievance, and prior grievances against Dr. Season were not considered in reaching these findings. However, the deliberations and decision with regard to recommended disciplinary action did take into consideration Dr. Season’s pattern of behavior, as evidenced in the actions taken by the AAOS Board of Directors in connection with two previous grievances. At the time he was testifying as an expert in this litigation, Dr. Season was appealing the findings and recommendations of the COP Hearing Panel to the Judiciary Committee in two previous grievances and, consequently, should have been well aware of the standards expected by an AAOS Fellow in providing expert opinions.
The recommendation of this COP Hearing Panel was not appealed to the Judiciary Committee and, on June 19, 2010, the AAOS Board of Directors considered this matter. After due deliberation and discussion, the Board upheld the findings and recommendation of the COP Hearing Panel and voted to suspend Edwin H. Season III, MD, for 3 years because of unprofessional conduct in the performance of expert witness opinion and testimony. Furthermore, it was voted that this suspension run in sequence to his current two 1-year suspensions.
Which standard applies?
Earlier this year, the AAOS fellowship voted to amend the Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony. The new SOPs for Orthopaedic Expert Opinion and Testimony went into effect on May 12, 2010.
Under the guidelines of the AAOS Professional Compliance Program, any expert witness opinion rendered prior to May 12, 2010, will be governed by the SOPs for Orthopaedic Expert Witness Testimony, regardless of when the grievance itself is filed. An expert opinion offered after May 12, 2010, will be governed by the SOPs for Orthopaedic Expert Opinion and Testimony.
Links to both sets of SOPs (Orthopaedic Expert Witness Testimony and Orthopaedic Expert Opinion and Testimony), as well as complete information on the AAOS Professional Compliance Program, can be found on the Professional Compliance Web site, www.aaos.org/profcomp
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Standards of Professionalism on Orthopaedic Expert Witness Testimony
The following standards apply to actions that occurred prior to May 12, 2010. For actions occurring after that date, the amended Standards of Professionalism for Orthopaedic Expert Opinion and Testimony apply.
- 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.