From “expert witness” to “expert opinion and testimony”

Effective May 12, 2010, a revised set of AAOS Standards of Professionalism (SOP) apply to all expert opinions provided by AAOS fellows and members. The amended and renamed SOP for Orthopaedic Expert Opinion and Testimony replaces and amplifies the original SOP for Orthopaedic Expert Witness Testimony and requires all AAOS fellows and members who serve as expert witnesses to comply with these minimum standards of acceptable conduct.

Why the modifications?
In September 2008, the Professional Compliance Procedures Project Team, chaired by then Second Vice-President John J. Callaghan, MD, recommended revisions to the Professional Compliance Program grievance procedures and a review of the SOP on Expert Witness Testimony to ensure that the mandatory standards remained clear and concise.

The Committee on Professionalism (COP) and the Judiciary Committee established a drafting team to review and revise the Expert Witness SOP. Several areas that needed clarification were identified.

The breadth of expert opinion
Because the language of the original Expert Witness SOP had been interpreted in several ways, the new SOP clarifies the circumstances under which the SOP applies and uses consistent language throughout. For instance, the original preamble read: These Standards of Professionalism apply to all AAOS Fellows or Members who provide expert opinion services to attorneys, litigants, administrative agencies or the judiciary in the context of administrative, civil, or criminal matters and include written expert opinions as well as sworn testimony.

Some respondents claimed, however, that they were not subject to the Expert Witness SOP because, although they gave a written opinion or report, they did not testify in a trial or by deposition. The amended SOP preamble reads: These Standards of Professionalism apply to all AAOS Fellows and Members who provide oral or written expert witness opinions, testimony, and other services to attorneys, litigants, administrative agencies, or the judiciary in the context of administrative, civil, or criminal matters and include, but are not limited to, writing expert opinions, signing certificates or affidavits of merit, reviewing medical records, and providing sworn testimony.

Consistently using the phrase “expert opinion and testimony” provides further evidence that the SOP applies whenever an AAOS fellow or member gives a medical opinion in a medical-legal setting—whether orally or in writing. The amended preamble also clarifies that “all Fellows and Members of the AAOS are considered to be ‘orthopaedic surgeons,’ regardless of whether they perform surgery.”

Variance from generally accepted standards
Mandatory Standard No. 5 of the original Expert Witness SOP required the expert witness to “state how and why his … opinion varies from generally accepted standards.” Respondents, however, frequently stated their opinions without further discussion. Respondents also insisted that their opinions were the generally accepted standard, without any further explanation or support.

The revised Standard now requires the expert witness to “be prepared to explain the basis of his or her statements.” The expert’s opinion does not necessarily have to reflect generally accepted standards and can, in fact, vary from those standards. However, if the opinions or statements do differ from generally accepted standards, the expert must, in addition to indicating how the statements differ, “indicate… whether they are supported by personal experience, specific clinical and/or scientific evidence.”

Review of pertinent materials
Nothing has engendered more debate than what materials an expert is required to review prior to offering an opinion. The original Mandatory Standard No. 6 required the expert witness to “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.” Respondents frequently argued that this wording only required the review of pertinent medical records, not other documents, such as patient depositions.

The intent of the SOP, noted members of the COP and the Judiciary Committee, is that orthopaedic expert witnesses must seek and review all materials that are relevant to the medical or surgical care of the patient and that are important to the expert in reaching his conclusions. A determination of what those relevant materials are should be left to the professional judgment of the orthopaedic surgeon serving as an expert, not to the trial attorney retaining the expert.

The revised Standard now provides that the expert witness “shall seek and review all pertinent medical records and applicable legal documents, including relevant prior depositions, before rendering any statement or opinion.” The orthopaedic surgeon serving as an expert still has the obligation to seek the pertinent medical records and is now expressly required to seek and review applicable legal documents, including depositions, before rendering an opinion.

Similarly, some expert witnesses have been accused of giving an opinion without reviewing radiographs or imaging films. The revised Standard requires an orthopaedic surgeon serving as an expert to review these materials if they are “pertinent” prior to giving a statement or opinion. Material may be deemed “pertinent” if the orthopaedic surgeon’s opinion or statement would have developed and/or concluded differently than it would have without such material.

Qualifications to serve
Under the original Mandatory Standard No. 8, an orthopaedic expert was required to have “relevant clinical experience and knowledge in the areas of medicine that are the subject of the proceeding.” In reviewing the proposed revisions, members of the Board of Councilors, Board of Specialty Societies, and the Ethics Committee raised a number of concerns. If an orthopaedic expert has not performed surgery in years or decades, is not trained in or has never performed newer procedures, is he or she qualified to testify as an expert on the newer procedures?

The revised Mandatory Standard No. 7 addresses these concerns. It provides that an AAOS fellow or member serving as an expert shall “provide statements only about subject matters in which he or she has relevant clinical experience and specific orthopaedic knowledge in the areas of medicine that are the subject of the proceeding.” [Emphasis added.] The thinking was that, in a matter involving a highly specialized area of orthopaedic surgery, an expert should have truly expert knowledge in the subject matter; a broad-based knowledge of orthopaedics alone is insufficient.

Now in force
The amended SOP on Orthopaedic Expert Opinion and Testimony went into effect on May 12, 2010. They govern testimony or opinions given on or after that date; expert opinion testimony rendered prior to May 12, 2010, is governed by the original SOP on Orthopaedic Expert Witness Testimony, which were adopted on April 18, 2005. Both versions are available on the AAOS Web site at www.aaos.org/profcomp

For more information, contact the General Counsel’s Office at professionalcompliance@aaos.org

Melissa Young, JD, is assistant general counsel for the AAOS. She can be reached at young@aaos.org