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AAOS Now

Published 12/1/2011

Board takes professional compliance actions

At its Sept. 24, 2011, meeting, the AAOS Board of Directors considered two grievances filed under the AAOS Professional Compliance Program and alleging violations of the AAOS Standards of Professionalism (SOPs) for Orthopaedic Expert Witness Testimony. After considering the information presented and upon recommendations of the Grievance Hearing Panel of the Committee on Professionalism (COP), the Board took the professional compliance actions indicated.

Mark J. Cerciello, MD
Allentown, Pa.
2-year Suspension

A grievance was filed against Mark J. Cerciello, MD, on October 18, 2010, alleging violations of Mandatory Standards Nos. 1, 2, 3, 4, 5, and 7 of the Standards of Professionalism for Orthopaedic Expert Witness Testimony. The grievance arose from statements made by Dr. Cerciello in his expert report pertaining to a case that alleged an orthopaedic surgeon (the grievant) had not recognized the need for urgent surgical treatment of a patient’s shoulder injury. In this report, Dr. Cerciello opined that a grade II-III acromioclavicular (AC) separation was a “class 5 injury” and that the failure by the orthopaedic surgeon to properly diagnose or treat this injury ultimately led to avoidable “massive” shoulder surgery.

The patient in the underlying case was a 56-year-old female with a history of seizures and falls who was brought to the emergency department in October 2006 after a cocaine overdose. She complained of right shoulder pain, and radiographs revealed an AC separation, though the radiologist interpreted the images as normal. The patient was given a sling and left the emergency department before her treatment was completed; however, she had been advised to see the grievant within a few days for orthopaedic follow up.

The patient was first seen by the grievant in December 2006. Evaluation revealed a prominent right clavicle and raised a question of deltoid atrophy or avulsion. The patient was referred to her neurologist for untreated seizures.

When the patient followed up with the grievant in June 2007, deltoid atrophy and prominence of the right distal clavicle was again seen. Right shoulder function and range of motion were said to be excellent, although the patient was unhappy with the cosmetic appearance. Electromyography (EMG) performed in July 2007 was unremarkable. At the next visit, in September 2007, the grievant advised ongoing conservative treatment.

The patient was seen by another orthopaedic surgeon in November 2007, and in January 2008, the patient underwent a right AC reconstruction by a second subsequent orthopaedic surgeon. Postoperatively, the patient complained of ongoing right shoulder pain aggravated by a fall in November 2008.

On July 16, 2011, the Committee on Professionalism (COP) conducted a hearing. Dr. Cerciello did not appear or submit any written materials in response to this grievance although he had been given timely notice. After thorough review and deliberation, the COP Grievance Hearing Panel found that Dr. Cerciello had violated Mandatory Standards Nos. 2, 3, 4, 5, and 7, but not Mandatory Standard No. 1. The COP Grievance Hearing Panel recommended that Dr. Cerciello be suspended from the AAOS for a period of 2 years.

In making its findings and recommendation, the COP Grievance Hearing Panel noted that Dr. Cerciello incorrectly classified a grade II-III AC separation as a “class 5 injury,” alleged that the diagnosis was missed, opined that the injury required immediate surgery, and stated that this failure to diagnose and treat caused the patient harm that ultimately led to avoidable “massive” surgery. The COP Grievance Hearing Panel found that Dr. Cerciello did not provide his expert opinion in a fair and impartial manner and that he condemned conservative management of the patient’s injury when conservative care was reasonable and fell within the generally accepted standards.

The COP Grievance Hearing Panel also found that Dr. Cerciello did not evaluate the care within the context in which it was delivered. The Hearing Panel believed that the vast majority of orthopaedic surgeons would have treated this patient conservatively, especially in light of the patient’s drug addiction and untreated seizures. Dr. Cerciello therefore condemned conservative treatment that fell within the generally accepted standards for managing a grade II-III AC separation and did not state why his recommendation for immediate shoulder surgery varied from the generally accepted standards.

The COP Grievance Hearing Panel further found his expert report did not demonstrate knowledge about the standard of care and/or the available scientific evidence for treating this type of injury. However, because Dr. Cerciello did not provide any materials or statements for review, the COP Grievance Hearing Panel could not evaluate his knowledge base or intent and, therefore, could not establish that Dr. Cerciello had knowingly provided false testimony in violation of Mandatory Standard No. 1.

Dr. Cerciello did not appeal the findings and recommendation of the COP Grievance Hearing Panel and on September 24, 2011, the AAOS Board of Directors voted to suspend Dr. Cerciello for a period of 2 years due to violations of Mandatory Standards Nos. 2, 3, 4, 5, and 7 of the Standards of Professionalism for Orthopaedic Expert Witness Testimony.

William E. Kennedy, MD
Jonesborough, Tenn.
1-year Suspension

On September 23, 2010, a grievance was filed against William E. Kennedy, MD, alleging violations of Mandatory Standards Nos. 1, 2, and 3 of the Standards of Professionalism for Orthopaedic Expert Witness Testimony. The grievance arose from statements made by Dr. Kennedy in his affidavit as an examining physician and expert witness pertaining to a case alleging wrong-level spine surgery. The grievant served as an assistant during the procedure and was named in the lawsuit with the primary surgeon.

In his affidavit, Dr. Kennedy stated that he was familiar with the American Medical Association CPT (Current Procedural Terminology) billing code system and opined that the two surgeons billed and actively performed as co-surgeons. Dr. Kennedy also opined that the two physicians, as co-surgeons, performed a spinal fusion to an area other than authorized and consented to by the patient, resulting in harm that otherwise would not have occurred.

In the underlying matter, the grievant was scheduled to assist his partner with an L4-5 fusion using autograft and pedicle screw instrumentation. The patient, who was not known in any way to the grievant, also had transitional vertebrae at L5-S1. The primary surgeon was aware that the grievant was coming from a different facility to assist and that he would not be present for the initial portion of the procedure. The grievant arrived as the first pedical screw was being placed and localization of level had already been performed using a c-arm. A hard copy of the images obtained during identification of the spinal levels was not available for viewing at the time of the grievant’s arrival and no conversation occurred suggesting there was any question about level accuracy. The procedure was completed without complication. Prior to closure, the grievant exited the operating room and he had no subsequent contact with the patient. Following surgery, the patient experienced pain issues. Ultimately, medical evaluation performed by Dr. Kennedy revealed that the fusion was at the L3-4 level, not the L4-5 level, and the patient underwent further surgery.

On July 15, 2011, the Committee on Professionalism (COP) conducted a hearing at which both parties were present. After careful evaluation of all materials and oral testimonies, the COP Grievance Hearing Panel found Dr. Kennedy in violation of Standards Nos. 1, 2, and 3 and recommended that he be suspended from the AAOS for 1 year.

In making its findings and recommendation, the COP Grievance Hearing Panel found that Dr. Kennedy knowingly provided false testimony. During his grievance hearing testimony, Dr. Kennedy confirmed that, at the time of his affidavit, he was an expert in CPT coding. At one point in his affidavit, Dr. Kennedy refers to the grievant as the assistant surgeon and thereafter defines the grievant’s role as “co-surgeon” both from a physical and coding standpoint, falsely citing the CPT coding system by stating that the -80 modifier identifies co-surgeons.

Dr. Kennedy characterized his words as “inartful” and apologized for their usage, stating that instead he should have used the term “fellow surgeon.” When queried, Dr. Kennedy agreed that his “inartful” statements could be construed as untrue. The differences in definitions of assistant surgeon and co-surgeon are distinct and well-defined by applicable regulations and, furthermore, there is no CPT billing code for “fellow surgeon.” The COP Grievance Hearing Panel found no reasonable explanation for such admittedly blatantly false written testimony.

The COP Grievance Hearing Panel also determined that there was more than sufficient evidence that Dr. Kennedy provided opinions that were not fair and impartial. His affidavit repeatedly assigned the grievant the same status of being a co-surgeon and equally responsible for the wrong-site surgery when the operative report, the billing information, and the deposition of the primary surgeon all clearly identified the grievant as the assistant surgeon.

The COP Grievance Hearing Panel also found that he did not evaluate the care provided in light of generally accepted standards. By inaccurately conferring co-surgeon status on the grievant, Dr. Kennedy concluded that the grievant had equal responsibility for the wrong-site surgery. When questioned during the grievance hearing, Dr. Kennedy confirmed that, in fact, it was not standard of care for the assistant surgeon to determine the correct surgical site. In this specific case, the facts indicated that the grievant would have had a particularly difficult time making this determination due to his limited involvement in the surgical procedures.

Both the grievant and Dr. Kennedy agreed that, ideally, the grievant would have identified the wrong level intra-operatively. The COP Grievance Hearing Panel found that this aspirational goal, however, does not constitute standard of care as portrayed by Dr. Kennedy, nor is it consistent with the erroneous conclusions reached in Dr. Kennedy’s expert opinion in view of the context of care delivered.

Dr. Kennedy did not appeal the findings and recommendations of the COP Grievance Hearing Panel and on September 24, 2011, the AAOS Board of Directors voted to suspend Dr. Kennedy for 1 year due to violations of Mandatory Standards Nos. 1, 2, and 3 of the Standards of Professionalism for Orthopaedic Expert Witness Testimony.

Additional Resources

Standards of Professionalism

Professional Compliance Program