At its meeting on Dec. 4, 2010, the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) considered a grievance filed under the AAOS Professional Compliance Program. A report of that action has been delayed while litigation concerning the grievance was pending. The litigation recently concluded, and this action is now summarized below.
Patrick J. Brandner, MD
On Oct. 21, 2008, a grievance was filed against Patrick J. Brandner, MD, alleging violations of the Standards of Professionalism for Orthopaedic Expert Witness Testimony, Mandatory Standards Nos. 3, 4, 6, 7, and 8. The grievance arose from statements made by Dr. Brandner during deposition and trial testimony as an expert for the plaintiff in a medical liability lawsuit. Dr. Brandner opined that the Grievant fell below the standard of care with regard to informed consent because he did not specifically state that there was a possibility of peroneal nerve injury as a result of surgery for right tibial corrective osteotomy.
The patient in the underlying case had a 39° deformity of the tibia. For 6 months, the initial treating surgeon treated the patient nonsurgically. Three months after first being seen by the Grievant, the patient underwent right tibial corrective osteotomy. Prior to the surgery, two additional orthopaedic surgeons agreed that osteotomy was necessary, although the original treating surgeon continued to recommend nonsurgical treatment.
The patient had postoperative complications including peroneal nerve palsy and a draining hematoma. A foot drop was evident on the first postoperative day and persisted thereafter. According to the patient, he was able to return to a number of vigorous activities.
In his deposition, Dr. Brandner testified in part that the Grievant fell below the standard of care because he did not specifically identify peroneal nerve injury as a possible complication of the procedure. He also opined that his belief regarding standard of care depended on whether the jury believed the patient and his family or the Grievant. The patient and his parent testified in their first depositions that the Grievant did inform them of the risk of drop foot; in their second deposition, they offered contradictory testimony and denied having been given this information.
Dr. Brandner also testified that he did not compare x-rays taken by the initial treating surgeon and those taken by the Grievant. He further opined that the patient’s fracture had the potential to heal and remodel without surgery.
On Oct. 2, 2009, the Committee on Professionalism (COP) Hearing Panel conducted a grievance hearing attended by both parties. Dr. Brandner also had an orthopaedic surgeon attend as his witness.
After careful evaluation of all material submitted, as well as oral testimony provided during the proceedings, the COP Hearing Panel unanimously found Dr. Brandner in violation of Mandatory Standards Nos. 3, 4, and 7. The COP Hearing Panel did not find Dr. Brandner in violation of Mandatory Standards Nos. 6 or 8.
In its Report and Recommendation, the COP Hearing Panel concluded that the medical records showed that informed consent was given consistent with the initial depositions given by the patient and his parent, who testified that they understood the specific possibility and causation of a foot drop. In the Hearing Panel’s opinion, Dr. Brandner’s testimony condemned performance that fell within generally accepted practice standards for informed consent. The Hearing Panel was also of the opinion that Dr. Brandner’s testimony that the patient’s severe deformity could remodel was incorrect and did not accurately reflect the scientific evidence in this case. Finally, the Hearing Panel determined that Dr. Brandner had the relevant experience and knowledge to offer expert opinions on this subject and found no evidence that he failed to review the medical records.
Dr. Brandner appealed the recommendation claiming that there was a lack of due process in the grievance proceedings and that the findings of the COP Hearing Panel were contrary to the clear weight of evidence. The Judiciary Committee conducted an appeal hearing on March 12, 2010. The Grievant, Dr. Brandner, and attorneys for both parties attended the hearing. The Committee unanimously determined that the AAOS afforded both parties due process under the AAOS Professional Compliance Program Grievance Procedures.
The Judiciary Committee also unanimously affirmed the COP Hearing Panel’s finding that Dr. Brandner violated Mandatory Standards Nos. 3 and 4. In its Appeal Hearing Report, the Committee acknowledged the discrepancy between the first and second depositions of the patient and his parent. The Committee was not persuaded that the change in testimony was sufficient evidence on which to base an opinion that the Grievant failed to inform the patient of the possibility of peroneal nerve injury.
In the Committee’s opinion, Dr. Brandner’s violation of the Standards of Professionalism did not result from his decision to base his opinion on contradictory testimony from the Grievant and the patient, but from his choice to base his opinion on one version of the patient’s and his parent’s depositions over another. The Committee rejected the argument that Dr. Brandner did not testify at trial on the standard of care, and as such, was not in violation of the Standards of Professionalism. In the Committee’s opinion, Dr. Brandner’s deposition testimony, in which he did testify that the Grievant fell below the standard of care, was subject to the requirements of the Standards of Professionalism. The Committee found that this testimony condemned performance by disregarding the generally accepted standard.
By a majority vote, the Judiciary Committee disagreed with the COP Hearing Panel as to Standard No. 7, concluding that there was insufficient evidence that Dr. Brandner was in violation of the standard. The Committee unanimously affirmed the COP Hearing Panel’s finding that Dr. Brandner did not violate Standards No. 6 and 8.
On Dec. 4, 2010, the AAOS Board of Directors considered this matter. Dr. Brandner and his attorney attended the hearing, and the Grievant provided a written statement. After careful deliberation and discussion, the Board upheld the findings and recommendation of the Judiciary Committee and voted to suspend Dr. Brandner for one (1) year for unprofessional conduct in the performance of expert witness testimony.
In December 2010, Dr. Brandner filed suit against the AAOS as a result of the action taken by the Board of Directors. On July 24, 2014, the U.S. Court of Appeals for the Seventh Circuit affirmed the entry of summary judgment in favor of the AAOS and against Dr. Brandner. The court’s opinion is available online.
For more information on the AAOS Professional Compliance Program, visit www.aaos.org/profcomp