Published 2/1/2011

AAOS Board takes professional compliance actions

At its Sept. 25, 2010, meeting, the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) considered a grievance filed under the AAOS Professional Compliance Program. After considering the information presented and upon recommendation of the Grievance Hearing Panel of the Committee on Professionalism, the Board took the following professional compliance action.

Kenneth L. Cherry, MD
State College, Pennsylvania

On March 31, 2009, a grievance was filed against Kenneth L. Cherry, MD, alleging violations of the Standards of Professionalism for Orthopaedic Expert Witness Testimony, Mandatory Standards Nos. 1 (“An orthopaedic expert witness shall not knowingly provide testimony that is false”) and 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”).

The grievance arose from statements made by Dr. Cherry in his videotaped trial deposition as a subsequent treating physician and surgeon in a medical liability lawsuit. The plaintiff-patient alleged that she had sustained leg length inequality and foot drop as a result of a hip replacement surgery performed by the defendant-orthopaedist. The jury found in favor of the defendant.

The patient in the underlying case was diagnosed with degenerative hip disease and underwent a right hip replacement through a posterior approach. The surgery was uneventful; however, the patient developed a postoperative foot drop.

Approximately 13 months later, the patient was seen by Dr. Cherry for evaluation of left hip pain. On that date, a complete history was taken and physical examination conducted. The patient provided the information relating to the right hip replacement surgery. Dr. Cherry noted that the patient’s right leg was more than 2 cm longer than the left and that there was a complete foot drop on the right side with a well-healed scar. Dr. Cherry recommended and, 6 weeks subsequent, performed a left hip replacement. He noted that he was able to make up the majority of the limb inequality at the time of the surgery. An EMG conducted 6 months postoperatively was found to be most consistent with a chronic right sciatic neuropathy.

On March 13, 2010, the Committee on Professionalism (COP) conducted a hearing at which the Grievant was present. Dr. Cherry did not attend or provide a written statement in lieu of his appearance. After an in-depth evaluation of the facts presented, all materials submitted, and the Grievant’s oral testimony at the hearing, the COP Grievance Hearing Panel found Dr. Cherry in violation of Mandatory Standard No. 3, but not Standard No. 1. While Dr. Cherry’s testimony was erroneous, the COP Grievance Hearing Panel did not find that it rose to the level of “knowingly” providing false testimony.  Dr.  Cherry’s testimony on surgical approach, cup size, cup alignment and leg length discrepancy, however, did not accurately reflect generally accepted standards at the time, place, and in the context of care provided.  The COP Grievance Hearing Panel found some of Dr. Cherry’s opinions egregious.  For example, he testified that his surgical approach and leg length measurement methods were superior to the defendant physician’s; however, upon further examination, Dr. Cherry’s methods of measurement were found to be similar to those used by the defendant physician.  Furthermore, there is no consensus of opinion in the orthopaedic community at large regarding the ideal or optimal surgical approach to total hip arthroplasty. The COP Grievance Hearing Panel recommended that Dr. Cherry be officially censured by the AAOS.

Dr. Cherry did not appeal the COP report and recommendation and, on Sept. 25, 2010, the AAOS Board of Directors considered this matter. After due deliberation, the Board upheld the findings and recommendation of the COP Grievance Hearing Panel and voted to censure Kenneth L. Cherry, MD, due to unprofessional conduct in the performance of expert witness testimony.

Automatic professional compliance action
At its meeting on Dec. 4, 2010, the AAOS Board of Directors considered the following automatic compliance matter and took the action indicated. The action was taken under Article VIII, Sections 8.2.d and 8.3.b of the AAOS Bylaws.

John K. Krebs, MD
Sheffield Village, Ohio

In June 2009, Dr. Krebs voluntarily self-reported to the State Medical Board of Ohio that he had entered residential treatment for depression and chemical dependency. In July 2009, the State Medical Board of Ohio was notified that Dr. Krebs was diagnosed with mixed dependency of alcohol and tramadol and that he was found to be impaired in his ability to practice according to acceptable and prevailing standards of care. Furthermore, the Medical Board was notified that residential treatment, followed by appropriate monitoring and supervision, had been recommended.

Dr. Krebs completed a 28-day residential treatment program and returned to work while attending aftercare sessions. In August 2009, the Ohio Medical Board cited Dr. Krebs for the above-referenced impairment and for obtaining drugs for self use from his office supply and by writing prescriptions in a family member’s name.

In December 2009, Dr. Krebs entered into a Consent Agreement with the Ohio Medical Board in lieu of formal proceedings. Conditions of this agreement included participation in a drug and alcohol rehabilitation program and suspension of his medical license for an indefinite period of time. He remained in compliance with this agreement and, in September 2010, Dr. Krebs entered into a Step II Consent Agreement with the Ohio Medical Board. The agreed conditions included reinstatement of his license with probationary terms, conditions, and limitations.

The AAOS Board of Directors voted to suspend John K. Krebs, MD, until he holds an unrestricted license to practice medicine.

AAOS Standards of Professionalism, as well as complete information on the AAOS Professional Compliance Program