At its meeting on Sept. 21, 2013, the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) considered two grievances 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 actions.
Barry J. Waldman, MD
On Sept. 20, 2012, a grievance was filed against Barry J. Waldman, MD, alleging violations of the Standards of Professionalism for Orthopaedic Expert Opinion and Testimony, Mandatory Standard No. 11 (“An orthopaedic surgeon who provides oral or written medical testimony or expert opinions shall accurately represent his or her credentials, qualifications, experience, or background”).
The grievance arose from statements made by Dr. Waldman in a deposition as an expert witness for the plaintiff in a medical liability lawsuit. The grievance was not related to the medical opinion and testimony of Dr. Waldman, but alleged that he misrepresented his credentials by failing to disclose disciplinary action against his license to practice medicine.
During his September 2010 deposition in the underlying case, Dr. Waldman was asked whether he had any suspensions or discipline of his medical license, to which he responded, “No.” Dr. Waldman did not disclose that he was under a Maryland Board of Physicians’ (Maryland Board) consent order that remained in effect. In a second deposition, Dr. Waldman acknowledged the consent order, which he did not believe to be a suspension or disciplinary action against his license.
The consent order was the result of a case resolution conference in October 2009 before the Maryland Board, which found that Dr. Waldman failed to meet appropriate standards of care in his treatment of two patients and that he failed to maintain adequate medical records. In December 2009, the Maryland Board issued a consent order, to which Dr. Waldman agreed. The terms of the consent order included a reprimand on his medical license and probation for a minimum of one year. Additional terms included the completion of medical record keeping courses and random peer review of patient records. Dr. Waldman complied with all of the terms outlined in the consent order, and in August 2011 the Maryland Board terminated his probation.
On March 22, 2013, the Committee on Professionalism (COP) conducted a hearing at which the Grievant, Dr. Waldman as the Respondent, and Dr. Waldman’s counsel were present. At the hearing, Dr. Waldman’s counsel explained that during the September 2010 deposition, Dr. Waldman did not understand the question posed to him about suspension and discipline was not defined. Dr. Waldman was under the impression that discipline meant that one’s practice was limited or reduced in some manner.
After an in-depth evaluation of the facts presented, all materials submitted, and the testimony of the parties at the hearing, the COP Grievance Hearing Panel found that Dr. Waldman violated Mandatory Standard No. 11 by failing to acknowledge and disclose the consent order as a disciplinary action. In the signed consent section, Dr. Waldman acknowledged that failing to abide by the conditions of the consent order may subject him to other “disciplinary” actions including the possibility of revocation of his license to practice medicine. He attested that he understood the language, meaning, and terms of the consent order, which was signed by both himself and his attorney.
At the time of his deposition, Dr. Waldman’s medical license remained under the probation period and terms imposed by the December 2009 consent order; therefore, failure to acknowledge and disclose the consent order as a “disciplinary action” was a misrepresentation of Dr. Waldman’s credentials and background. The COP Grievance Hearing Panel recommended that Dr. Waldman be officially censured by the AAOS.
Dr. Waldman did not appeal the COP’s report and recommendation and, on Sept. 21, 2013, 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 Barry J. Waldman, MD, due to unprofessional conduct in the performance of expert witness testimony.
Jeffrey D. Reuben, MD
On Oct. 3, 2012, a grievance was filed against Jeffrey D. Reuben, MD, alleging violations of the Standards of Professionalism for Orthopaedic Expert Opinion and Testimony, Mandatory Standard No. 6 (“An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall seek and review all pertinent medical records and applicable legal documents, including relevant prior depositions, before rendering any statement or opinion on the medical or surgical management of the patient”).
The grievance arose from statements made by Dr. Reuben in an expert report that was prepared for the plaintiff patient’s attorney. The lawsuit alleged that the Grievant initially ordered a patient-controlled analgesia (PCA) pump with morphine for a patient with a known morphine allergy, which subsequently caused postoperative respiratory arrest. The court granted the defendants’ joint motion for summary judgment and dismissed the case.
The patient in the underlying case had undergone an elective anterior cervical diskectomy and fusion polyetheretherketone (PEEK) cage and an anterior plate for a cervical herniated disk. The surgery was uneventful; however, according to the postanesthesia care unit (PACU) records, the patient was obtunded and had trouble oxygenating after extubation, requiring re-intubation for an hour to allow for the anesthesia effects to dissipate.
The Grievant had written postoperative orders, which included an order for PCA morphine. A PACU nurse noticed this and contacted the Grievant to advise him of the patient’s allergy. The order was subsequently changed to hydromorphone PCA. Detailed pharmacy records and the report of the secure/locked drug dispensing unit confirmed that the patient did not receive morphine before, during, or after her surgery.
In his expert report, Dr. Reuben opined that despite the patient’s well-documented allergy to morphine, the patient was administered morphine postoperatively by the nursing staff per the surgeon’s order. He further opined that the medication error resulted in the patient’s acute respiratory arrest, which required additional treatment and resuscitation.
On March 22, 2013, the COP Hearing Panel conducted a grievance hearing attended by Dr. Reuben and the Grievant’s counsel. At the hearing, Dr. Reuben testified that he received information from the plaintiff’s attorney who said that a hospital employee told the patient that she had received morphine. With reference to the report, Dr. Reuben stated that a draft was prepared by the plaintiff’s attorney, which he reviewed and made some changes to. Dr. Reuben indicated that his review of the record took 40 minutes.
Dr. Reuben had agreed to write the report because he thought there was a possibility that the patient did receive morphine. He noted a discrepancy in the notes of the evening consulting physician, who ordered discontinuation of the morphine, when the Grievant had already written an order to cancel the PCA morphine earlier that day. Dr. Reuben acknowledged there was no discreet mention in the record of actually administering morphine, but that it was possible because of the discrepancy in the chart and the information from the hospital employee.
After careful evaluation of the facts presented, all materials submitted, and the testimony of the parties at the hearing, the COP Grievance Hearing Panel found that Dr. Reuben violated Mandatory Standard No. 6 by signing an expert letter that affirmed a breach of the standard of care without adequately reviewing the records or seeking additional documents. In making its decision, the Hearing Panel noted that while Dr. Reuben did review the records he was provided, he failed to seek further evidence that morphine was in fact administered to this patient.
Dr. Reuben also relied upon third-party hearsay through the plaintiff’s attorney or hospital employee that the patient had received morphine without specific documentation to confirm. Careful review of the records would reveal no evidence that the patient had received the drug to which she was allergic or that a respiratory arrest had occurred. The COP Grievance Hearing Panel recommended that Dr. Reuben be officially censured by the AAOS.
Dr. Reuben did not appeal the COP report and recommendation and, on Sept. 21, 2013, 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 Jeffrey D. Reuben, MD, due to unprofessional conduct in the performance of expert witness testimony.
For more information on the AAOS Professional Compliance Program, visit www.aaos.org/profcomp