At its meeting on Dec. 5, 2015, the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) considered three grievances filed under the AAOS Professional Compliance Program. In addition, the Board considered a compliance matter not related to the AAOS Standards of Professionalism (SOP).
After considering the information presented and upon recommendation of the Judiciary Committee and the Committee on Professionalism, the Board took the following professional compliance actions.
Joel W. Malin, MD
On March 4, 2014, a grievance was filed against Joel W. Malin, MD, alleging violation of Mandatory Standard No. 5 of the Standards of Professionalism for Orthopaedic Expert Opinion and Testimony. The grievance arose from expert witness testimony provided by Dr. Malin in which he testified that the Grievant negligently caused the patient's foot drop during a hip arthroplasty procedure. The underlying matter proceeded to a jury trial where a verdict was rendered in favor of the Grievant.
The patient, a 59-year-old, 240-lb. male with phlebitis problems underwent a total left hip arthroplasty by the Grievant. The procedure was done through a posterior approach and lasted 2 hours and 26 minutes. The patient awoke with an immediate, dense left peroneal nerve palsy. Subsequent electrodiagnostic studies indicated that the palsy was due to axonal damage.
The Grievant alleged that Dr. Malin violated Mandatory Standard No. 5 when he opined that the foot drop was the result of negligence that occurred during the surgery. Despite acknowledging the orthopaedic literature which indicates that a foot drop can occur even when a hip replacement was done without a deviation from the standard of care, Dr. Malin maintained his opinion that negligence occurred during the surgery, but provided no support for the opinion.
In October 2014, the Committee on Professionalism (COP) conducted a hearing attended by Dr. Malin, his legal counsel, as well as a supporting witness and the Grievant. Dr. Malin testified that there was nothing in the medical record to suggest that the procedure needed to be almost 2 and a half hours long. He also believed that nerve damage could have occurred from stretch or retraction. Dr. Malin's supporting witness, also an orthopaedic surgeon, said that the most likely explanation for the patient's foot drop is extended pressure or tension on the sciatic nerve, caused by a retractor, lengthy procedure, or done at the time of dislocation.
After an in-depth evaluation of the materials submitted by each party and the hearing testimony, it was the majority opinion of the COP Hearing Panel that Dr. Malin did not adequately explain why his causation theory for this patient's nerve palsy supported the conclusion that there was a deviation from the generally accepted practice standards. The Hearing Panel noted that according to well accepted and supported medical literature, in half of total hip cases with peroneal palsies, the cause is unknown. Although Dr. Malin indicated that the surgery took a long time, he did not explain to the satisfaction of the majority of the Panel why all or many long surgeries do not result in similar problems. Dr. Malin discussed excessive retractor pressure on the sciatic nerve as a possible cause of nerve damage, but he had no facts in this particular case to support the theory. Dr. Malin explained that each case had to be evaluated individually in order to know if the standard of care had been violated. However, he did not explain how or why a deviation occurred in this case. The COP Hearing Panel believed that the mere presence of a complication or adverse event does not prove that a deviation from the standard occurred. The COP Hearing Panel recommended that, as a result of this violation, Dr. Malin be officially censured by the AAOS.
Dr. Malin appealed the recommendation, and the Judiciary Committee conducted an appeal hearing in July 2015, which was attended by Dr. Malin, his legal counsel, and the Grievant. Dr. Malin told the Judiciary Committee that it would not necessarily be malpractice if a total hip procedure took 2 hours and 26 minutes, but in his opinion, malpractice did occur in this case because the procedure took 4 to 5 times longer than usual. In the Judiciary Committee's opinion, Dr. Malin's opinion was missing an essential element of causation, namely support for his theory that the length of the procedure caused the patient's nerve palsy and was a deviation from the generally accepted practice standards. Dr. Malin also said that he did not violate Mandatory Standard No. 5 because his opinion was based on his personal experience. However, the Judiciary Committee noted that the purpose of the standard is to allow the application of personal experience to the evidence, not to suggest that someone with experience may simply say that they believe something is true when evidence is lacking. After careful consideration, the Judiciary Committee found that AAOS and the COP Hearing Panel afforded both parties due process and unanimously agreed with the recommendation of the COP Hearing Panel to censure Dr. Malin.
At its meeting on Dec. 5, 2015, the AAOS Board of Directors considered this matter. Dr. Malin attended. After thorough evaluation and discussion, the Board upheld the findings and recommendation of the COP and Judiciary Committee and voted to censure Dr. Malin due to unprofessional conduct in the performance of expert witness testimony.
William T. Obremskey, MD, MPH
On Oct. 31, 2013, a grievance was filed against William T. Obremskey, MD, MPH, alleging violation of Mandatory Standards Nos. 1, 4, and 6 of the Standards of Professionalism for Orthopaedic Expert Opinion and Testimony. The grievance arose from statements made by Dr. Obremskey in his expert opinion letter and deposition, where he opined that the Grievant's treatment of the patient fell below the standard of care due to inadequate deep vein thrombosis (DVT) prophylaxis and improper screening to protect the patient from a fatal pulmonary embolism. The underlying case was dismissed by an order of nonsuit without prejudice in 2012.
The medical case involved a 51-year-old, obese, diabetic male with sleep apnea, hypertension, a postcraniotomy seizure disorder, and cardiac disease who fell from a van and sustained a fracture of his medial malleolus and tibial plateau on July 1, 2009. The patient was admitted for pain control and, during evaluation, was intubated for respiratory arrest. While in the intensive care unit (ICU), he was given Lovenox® and a sequential compression device (SCD) was ordered. A computed tomography angiogram and D-dimer test were negative for pulmonary embolism. The patient recovered and on July 3 was extubated and cleared for surgery by cardiology, pulmonology, anesthesia, and the hospitalist. On July 5, he underwent internal fixation of the right leg fractures. Intraoperatively, the patient developed difficulty with oxygenation and was returned to the ICU where an echocardiogram showed right ventricular strain, consistent with a large pulmonary embolus. The patient continued to decline, coded, and could not be resuscitated. The autopsy cited the cause of death as "multiple peripheral pulmonary bone marrow emboli due to fractures of right lower extremity status-post internal fixation of fractures."
In July 2014, the COP conducted a hearing attended by Dr. Obremskey and the Grievant. After an in-depth evaluation of the material submitted by each party and the hearing testimony, the COP Hearing Panel found by a majority opinion that Dr. Obremskey violated Mandatory Standard Nos. 1, 4, and 6. The Hearing Panel recommended that, as a result of these violations, Dr. Obremskey be officially suspended for a period of one year by the AAOS.
The COP Hearing Panel was of the view that Dr. Obremskey violated Standard No. 1 when he testified that DVT screening and prophylaxis could have prevented the "fatal event," as he later acknowledged that neither preoperative DVT prophylaxis nor an inferior vena cava filter would have prevented bone marrow emboli. The Hearing Panel found that Dr. Obremskey condemned performance that fell within generally accepted practice standards in violation of Mandatory Standard No. 4 when he criticized the Grievant for not providing adequate DVT prophylaxis and screening, and for improperly timing the patient's surgery. In addition, the Hearing Panel found that Dr. Obremskey failed to seek and review the patient's autopsy report, intraoperative anesthesia record, and x-rays prior to preparing his opinion letter in violation of Mandatory Standard No. 6. In this case, the Hearing Panel believed that these documents were critical to the formation of an accurate opinion.
Dr. Obremskey appealed the recommendation, and the Judiciary Committee conducted an appeal hearing in July 2015. Dr. Obremskey and his counsel attended. The Grievant did not attend, but provided a written statement that was read into the record. Dr. Obremskey maintained that he did not intentionally mislead or make false statements, and that the Guidelines of the American College of Chest Physicians recommended pharmacological DVT prophylaxis for such a high-risk patient. Dr. Obremskey noted that while SCDs were ordered, there was no documentation in the record that they were applied. He also explained that he criticized the timing of the surgery because the patient had poor and deteriorating pulmonary function and because this was a semi-elective surgery.
The Judiciary Committee unanimously determined that the AAOS had afforded due process to Dr. Obremskey and also concluded by a majority vote that the clear weight of evidence supported the COP's findings of violation of Mandatory Standards Nos. 4 and 6. However, by a majority vote, the Judiciary Committee did not affirm the COP Hearing Panel's finding of a violation of Mandatory Standard No. 1.
The Judiciary Committee found that while Dr. Obremskey is entitled to his opinion that more robust DVT prophylaxis should have been provided, he was incorrect in his statement that inadequate DVT prophylaxis led to the patient's death since the cause of death was clearly described in the autopsy report as having been the result of bone marrow emboli and not due to thromboemboli. The Judiciary Committee also agreed with the COP's finding that Dr. Obremskey violated Mandatory Standard No. 6. The autopsy report was a pertinent medical record which would have provided Dr. Obremskey with critical information on the cause of death as he formed his expert opinion.
The Judiciary Committee by a majority vote recommended to the Board of Directors that Dr. Obremskey be censured for violation of Nos. 4 and 6.
At its meeting on Dec. 5, 2015, the AAOS Board of Directors considered this matter. Dr. Obremskey attended with his counsel, and the Grievant also attended. After thorough evaluation and discussion, the Board upheld the findings and recommendation of the Judiciary Committee and voted to censure Dr. Obremskey due to unprofessional conduct in the performance of expert witness testimony.
Michael P. Rubinstein, MD
Yorba Linda, Calif.
On Sept. 2, 2014, a grievance was filed against Michael P. Rubinstein, MD, alleging violation of Mandatory Standards Nos. 1–7, 10, 11, and 13 of the Standards of Professionalism for Orthopaedic Expert Opinion and Testimony. The grievance arose from statements made by Dr. Rubinstein in his expert witness testimony wherein he opined that the Grievant's treatment of the patient fell below the standard of care when he lacerated the radial nerve during cement removal while explanting an infected reverse shoulder arthroplasty. A jury trial concluded with a verdict for the defendants in 2014.
The medical case involved a 57-year-old male with chronic right shoulder pain and a massive rotator cuff tear who underwent an arthroscopic biceps tenotomy by the Grievant in August 2009. The patient failed to improve and a reverse shoulder arthroplasty was performed in December 2009. A postoperative infection prompted an irrigation and debridement with poly exchange by another surgeon in March 2010, but infection recurred. In April 2010, the Grievant performed an explantation of the prosthesis with insertion of an antibiotic spacer. While removing the cement mantle using a pituitary rongeur, the radial nerve was accidently lacerated through a cortical perforation of the humerus. The complication was immediately recognized by the Grievant and he informed the patient and his family of the problem. The patient had a complete radial nerve palsy postoperatively. Three days later, an open repair of a 75 percent laceration of the radial nerve was performed by another surgeon. The patient continued to have complications and subsequently underwent radial nerve tendon transfer and reverse shoulder arthroplasty with limited use of his right hand.
In July 2015, the COP conducted a hearing attended by Dr. Rubinstein, his counsel, and the Grievant. After in-depth evaluation of the material submitted by each party and the hearing testimony, the COP Hearing Panel found that Dr. Rubinstein violated Mandatory Standards Nos. 2, 3, 4, and 6, but that he did not violate Nos. 1, 5, 7, 10, 11, or 13.
The COP Hearing Panel found that Dr. Rubinstein violated Mandatory Standard No. 2 because he was not fair and impartial when he testified that the transection of the radial nerve was not an accepted complication of cement removal and that a pituitary rongeur was a dull instrument that would not cut through a nerve.
The COP Hearing Panel also found a violation of Mandatory Standard No. 3 because Dr. Rubinstein testified contrary to generally accepted standards of care when he opined that it is a blind pass every time a surgeon passes a pituitary rongeur down the medullary canal. He further explained that, in order to prevent a blind pass, a surgeon in that situation should either have a wide surgical exposure to directly visualize the external cortex for perforation or should be monitoring the procedure fluoroscopically. While the literature provided by Dr. Rubinstein found that use of fluoroscopy and wide surgical exposure were important to avoid complications, it did not suggest its near continuous use as a standard of care. In the Hearing Panel's opinion, the procedure used in the case was usually done by feel and noting the trajectory of the instruments being used in relation to bony structures involved. The Panel was also of the opinion that fluoroscopy and wide surgical exposure are valuable tools, but a surgeon should not be condemned for not using them under the circumstances of this case. Accordingly, the Hearing Panel found Dr. Rubinstein's condemnation under these circumstances was a violation of Mandatory Standard No. 4.
Finally, the COP Hearing Panel found that Dr. Rubinstein violated Mandatory Standard No. 6 because he admittedly did not review the patient's deposition, the electromyogram or functional assessment in forming his opinions concerning the disability of the patient. Additionally, Dr. Rubinstein testified that the patient would only have 40 percent use of his hand, citing the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment as his support for this statement. However, according to the AMA Guides, this patient had a 40 percent impairment of the upper extremity for the injury to the radial nerve resulting in 60 percent function of the hand. The Hearing Panel recommended that Dr. Rubinstein's AAOS membership be suspended for 1 year.
Dr. Rubinstein did not appeal the COP Report and Recommendation to the Judiciary Committee and, on Dec. 5, 2015, 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 suspend Dr. Rubinstein for 1 year due to unprofessional conduct in the performance of expert witness testimony.
Additional action not related to the AAOS SOP
Alexios Apazidis, MD
Saint James, N.Y.
AAOS Fellowship Suspended
In June 2015, the New York State Board for Professional Medical Conduct issued a Consent Order whereby Dr. Apazidis was fined and his license to practice medicine was suspended for 36 months which was subsequently stayed in favor of probation for the same period. Dr. Apazidis maintains an active license to practice medicine, but the terms of his probation included practice monitoring with review of medical charts by a licensed physician, and completion of a continuing education program in prescribing controlled substances. The action stemmed from charges against Dr. Apazidis, including prescribing Ketamine gel to patients without adequate indication, and failure to maintain proper documentation.
The AAOS Board of Directors voted to suspend Dr. Apazidis' Fellowship in AAOS until he holds a full and unrestricted license to practice medicine.
For more information on the AAOS Professional Compliance Program, visit www.aaos.org/profcomp