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AAOS Now

Published 3/1/2017

AAOS Board Takes Professional Compliance Actions

At its meeting on Dec. 10, 2016, the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) considered two grievances filed under the AAOS Professional Compliance Program. In addition, the Board considered compliance matters not related to the AAOS Standards of Professionalism (SOP).

SOP Grievances
After considering the information presented and upon recommendation of the Judiciary Committee and the Committee on Professionalism (COP), the Board took the following professional compliance actions.

Stephen H. Marcus, MD
Woodmere, N.Y.
2-Year Suspension
On July 23, 2015, a grievance was filed against Stephen H. Marcus, MD, alleging violation of Mandatory Standards Nos. 1 through 6 of the SOP for Orthopaedic Expert Opinion and Testimony. The grievance arose from statements made by Dr. Marcus in his trial testimony in a medical malpractice lawsuit. The matter went to a jury trial where a verdict was rendered in favor of the defendants.

The medical case involved a 49-year-old male who was 6’1” and weighed 285 pounds with a body mass index of 36. The patient twisted his left knee while getting into a truck at work on Jan. 22, 2010. Four days later, he sought treatment from an orthopaedic surgeon who suspected a torn meniscus. The MRI showed medial and lateral meniscal tears as well as a popliteal cyst. During a Feb. 2, 2010, office visit, the orthopaedic surgeon reviewed the test results and scheduled a knee arthroscopy. Risks, benefits, and alternatives were discussed, including risks of infection, deep vein thrombosis (DVT), and neurovascular injury. On Feb. 18, 2010, the patient underwent a left knee arthroscopy with partial lateral meniscectomy, patella-femoral chondroplasty, and decompression of a Baker cyst.

On Feb. 23, 2010, the patient was seen by the physician assistant. The patient had not felt well and had calf pain the day before, but not on the day of the office visit. The physician assistant documented that the wound was clean and dry and mild calf pain was present at examination. Active and passive range of motion of the knee was assessed. During the examination, the patient became diaphoretic and chest pain developed. The patient’s blood pressure was 160/80 mm Hg and pulse rate was 88. A Doppler ultrasound performed in the emergency department found spontaneous flow and good compressibility in the common femoral vein, superficial femoral vein, and the popliteal vein. A thrombus was noted “incidentally” within the lesser saphenous vein and the peroneal vein. A CT pulmonary angiogram revealed extensive, bilateral pulmonary emboli (PE) including a saddle embolus. Heparin therapy was initiated and the patient was admitted to the intensive care unit. The patient was given a prescription for Coumadin and ultimately discharged in stable condition. At the time of the last office visit on April 21, 2010, the treating orthopaedic surgeon noted a slight improvement in the patient’s symptoms in comparison to his preoperative status. Physical therapy and a dynamic extension brace were ordered and no further follow-up was scheduled.

In March 2016, the COP conducted a hearing attended by the Grievant, Dr. Marcus, and his attorney. After an in-depth evaluation of the material submitted by the parties and the hearing testimony, the COP Hearing Panel found by a majority opinion that Dr. Marcus did not provide a fair and impartial expert opinion and, therefore, violated Mandatory Standard No. 2. He discounted certain aspects of the recorded office visit as unreliable, yet used other components of the same record to support various portions of his own testimony. He also persisted in characterizing the physical examination as forceful, when nothing in the medical record or testimony suggested to the Hearing Panel that the examination was improper. Although the Hearing Panel concurred that the adverse event of a PE occurred during the office visit, Dr. Marcus’ opinion that this constituted malpractice on the part of the physician or physician assistant as a result of the examination was not a fair conclusion.

The Hearing Panel also unanimously found that Dr. Marcus violated Mandatory Standards Nos. 3 and 4. The Hearing Panel concluded that Dr. Marcus provided inaccurate and incomplete testimony on the standard of care as it relates to the pathophysiology, evaluation, and ultimate diagnosis of DVT and PE. Despite his many assertions during the grievance process to the contrary, Dr. Marcus’ testimony contained numerous statements in which he condemned routine and standard components of a postoperative arthroscopy visit, such as range of motion testing, assessment of calf tenderness, tight cords, and skin temperature. Likewise, he criticized the orthopaedic surgeon for not immediately having a Doppler ultrasound performed when the record reflected that the patient presented to the clinic with not uncommon postoperative complaints. The Hearing Panel noted that the remote possibility that an acute venous thromboembolic event could occur during such an evaluation did not preclude the appropriateness of conducting a physical examination under the circumstances described in the records and testimony. 

The Hearing Panel recommended that, as a result of the violation of Standards Nos. 2, 3, and 4, Dr. Marcus be officially suspended by the AAOS for a period of 2 years. The Hearing Panel did not find Dr. Marcus in violation of Mandatory Standards Nos. 1, 5, or 6.

Dr. Marcus did not appeal the COP Hearing Panel’s recommendation and, on Dec. 10, 2016, the AAOS Board of Directors considered this matter. After due deliberation, the Board upheld the findings of the Hearing Panel and voted to suspend Stephen H. Marcus, MD, for 2 years due to unprofessional conduct in the performance of expert witness testimony.

Richard L. Shure, MD
Windermere, Fla.
Censure
On July 30, 2015, a grievance was filed against Richard L. Shure, MD, alleging violation of Mandatory Standards Nos. 1 through 6, 11, and 13 of the SOP for Orthopaedic Expert Opinion and Testimony. The grievance arose from statements made by Dr. Shure in his affidavit and deposition testimony in a medical malpractice lawsuit. The matter was settled and the case was dismissed with prejudice.

The medical case involved a disabled 52-year-old, right-hand–dominant woman with a history of skull decompression for Arnold-Chiari malformation, a shunt in the brain since 1993, and preoperative quadriplegia with some residual left-sided weakness. In addition, the history revealed that she had undergone a tonsillectomy and adenoidectomy, cholecystectomy, tubal ligation, splenectomy, and a right total hip replacement. The patient had also been previously diagnosed with chronic obstructive pulmonary disease, hypertension, anxiety, depression, and rheumatoid arthritis. She drank alcohol (a half-bottle of vodka per day), smoked tobacco (one pack per day), and used marijuana (3 times per day).

She was initially seen for a 7-week-old left thumb metacarpophalangeal (MCP) joint dislocation and underwent open reduction and pinning of the thumb dislocation, receiving a single dose of preoperative antibiotic.

On the fifth postoperative day, the patient was seen by the treating orthopaedic surgeon who noted some loss of reduction but no sign of infection. She was offered repeat closed reduction and pinning to improve position. At 1 week postoperative, the patient returned to the operating room where the previously placed pin was removed, the thumb was manipulated in a closed fashion, and two new pins were placed to transfix the joint in its proper position. No prophylactic antibiotics were given for this second closed pinning procedure.

Five days after the second procedure, the patient was noted to have wound infection and sepsis (temperature 102.5 °F, chills, malaise, swelling, redness around the incision, and drainage). The patient’s wound was opened, drained, and irrigated in the orthopaedic surgeon’s office. She was admitted to the hospital for intravenous antibiotics and medical management of the methicillin-sensitive Staphylococcus aureus septicemia under the care of a hospitalist and infectious disease specialist.

Over the ensuing 2 or 3 days, a cervical epidural abscess and quadriparesis/cervical myelopathy developed. The patient was transferred to a teaching hospital for surgical decompression and cervical spine fusion. She was also treated for pneumonia and an early decubitus ulcer.

In March 2016, the COP conducted a hearing attended by the Grievant, Dr. Shure, and his attorney. After an in-depth evaluation of the material submitted by the parties and the hearing testimony, the COP Hearing Panel unanimously found that Dr. Shure violated Mandatory Standard No. 6 because he should have requested medical records, including discharge summary information, before opining in his affidavit that the treating orthopaedic surgeon was negligent in failing to provide the patient with emergency contact information. These records indicated that the patient was given this information, as well as instructions on how to manage any emergencies or complications. The Hearing Panel believed that, as an operating surgeon himself, Dr. Shure should have been aware that such discharge instructions are routinely given to patients and should not have made an assumption to the contrary in the absence of proof.

The Hearing Panel recommended that, as a result of the violation of Standard No. 6, Dr. Shure be officially reprimanded by the AAOS. The Hearing Panel did not find Dr. Shure in violation of Mandatory Standards Nos. 1 through 5, 11, or 13.

Both the Grievant and Dr. Shure appealed the COP recommendation. In Aug. 2016, the Judiciary Committee conducted an appeal hearing, which was attended by Dr. Shure and the Grievant. During the appeal hearing, the Grievant argued that Dr. Shure violated the SOPs when he testified that the failure to give the patient antibiotics led to a 100 percent chance of infection developing.

Dr. Shure countered that the patient’s complex medical history and severely immunocompromised status supported his opinion that the antibiotics should have been administered at the time of the second surgical procedure. He argued that he did not violate the SOPs because state law permitted an expert witness to offer opinions in a pre-suit affidavit that was based on an incomplete medical record. Dr. Shure also complained of several alleged violations of his due process rights during the grievance process, including the Grievant’s unsuccessful attempt to offer into the record evidence in a format that had been previously denied by the AAOS. He also cited the COP Hearing Panel’s failure to recommend a sanction against the Grievant based on allegations raised by Dr. Shure in his response papers.

After careful consideration, the Judiciary Committee found that the AAOS and the Hearing Panel afforded both parties due process. The Judiciary Committee also found that Dr. Shure violated Standards Nos. 2 and 6 and recommended that Dr. Shure be censured by the AAOS. 

The Judiciary Committee agreed with the COP Hearing Panel that Dr. Shure violated Mandatory Standard No. 6 based on his failure to request and review all of the pertinent records prior to rendering an expert opinion. The affidavit is the first step in a malpractice case in Florida, and all information may not be available at that time. Nevertheless, Dr. Shure stated definitively that discharge instructions as well as contact information were not provided by the orthopaedic surgeon rather than that he had not received a copy of the discharge instructions. He assumed that the instructions were not given even though the universal practice is to provide such instructions and contact information postsurgery, and the patient had been able to find the treating physician initially and again prior to revising the fixation of her thumb. 

With respect to Mandatory Standard No. 2, the Judiciary Committee agreed that, after the fact, a patient will either have an infection or not have an infection, but that does not mean that the infection risk was either 0 percent or 100 percent. In the Judiciary Committee’s opinion, suggesting that the risk was 100 percent a priori was biased and not impartial. The Judiciary Committee also agreed with the Hearing Panel and Dr. Shure that the patient in this case was a compromised host and that providing preoperative antibiotic prophylaxis would be the standard of care in this situation.

However, the Judiciary Committee also thought that, even with prophylactic antibiotics, the infection most likely still would have developed in this patient because the infecting organism (S aureus) typically takes 10 to 14 days to cause a systemic infection. As a result, in the Judiciary Committee’s opinion, it was more likely that the infection occurred at the time of the first procedure, despite the administration of antibiotics, because the infection only manifested itself 5 days after the second procedure. If this were true, one dose of antibiotics given at the time of the second procedure would be very unlikely to eradicate an infection that was already in progress.

For these reasons, the Judiciary Committee found Dr. Shure testified unfairly that not administering antibiotics at the time of the second surgery represented a 100 percent risk of infection, in violation of Standard No. 2. 

At its meeting on Dec. 10, 2016, the AAOS Board of Directors considered this matter. Both parties attended. After thorough evaluation and discussion, the Board upheld the findings of the Judiciary Committee and voted to censure Richard L. Shure, MD, due to unprofessional conduct in the performance of expert witness testimony.

Additional actions not related to the AAOS SOP
At its meeting on Dec. 10, 2016, the AAOS Board of Directors considered the following licensure compliance matters not related to the AAOS SOPs and took the actions indicated.

Eugene Bartucci, MD
Elmhurst, Ill.
AAOS Fellowship Suspended
In June 2016, the Illinois Department of Financial and Professional Regulation and Dr. Bartucci entered a Consent Order in which Dr. Bartucci’s license to practice medicine was suspended for 60 days and thereafter he would be placed on indefinite probation for a minimum of 1 year. Dr. Bartucci was also fined and is required to complete continuing medical education regarding controlled substance prescribing and management. The action stemmed from a patient complaint of improper prescription of controlled substances. Dr. Bartucci’s suspension concluded in August 2016, and his license to practice medicine is active, but he remains on probation.     

The AAOS Board of Directors voted to suspend Dr. Bartucci’s Fellowship in AAOS until he holds a full and unrestricted license to practice medicine.

Herbert O. Boté, MD
Kenai, Alaska
AAOS Fellowship Suspended
In May 2016, the Alaska State Medical Board and Dr. Boté entered into a Consent Agreement in which Dr. Boté’s license to practice medicine was suspended for 90 days and he was placed on probation for 3 years, which includes a requirement for a third-party chaperone during examinations of female patients. Dr. Boté was also reprimanded, fined, and required to complete additional hours of education in patient boundaries and ethics. The action stemmed from Dr. Boté’s engagement in flirtations and personal conversations not related to the delivery of care with two female patients. Dr. Boté self-reported the incidents, but denied other allegations. Dr. Boté’s suspension concluded in September 2016, and his license to practice medicine is active, but he remains on probation.  

The AAOS Board of Directors voted to suspend Dr. Boté’s Fellowship in AAOS until he holds a full and unrestricted license to practice medicine.

William C. Malik, MD
Oak Brook, Ill.
AAOS Fellowship Suspended
In August 2016, Dr. Malik was convicted of felony aggravated driving under the influence of alcohol (“DUI”) and was sentenced to 6 years in prison followed by 2 years mandatory supervised release. He was also convicted of damage to property and was given a 1-year sentence to be served concurrently. The convictions stemmed from an incident in July 2015 in which Dr. Malik was DUI, sideswiped a car, and caused damage to property. He was found guilty in a jury trial, and the judge sentenced him in August 2016 because the last incident was his seventh DUI. Dr. Malik has filed an appeal.      
The AAOS Board of Directors voted to suspend Dr. Malik’s Fellowship in AAOS pending the disposition of his appeal.

Issada Thongtrangan, MD
Phoenix, Ariz.
AAOS Fellowship Suspended
In February 2016, the Arizona Medical Board and Dr. Thongtrangan entered into an Interim Consent Agreement after he self-reported inappropriately prescribing pain medications to two patients without first conducing physical examinations. The Medical Board also received a second report alleging that Dr. Thongtrangan was involved in an inappropriate relationship with a patient. After an investigation, the Board entered its decree in May 2016 which placed Dr. Thongtrangan on probation for a period of 5 years, retroactive to February 2016. The terms of his probation included the requirement that a female chaperone be present for examinations of female patients, continued therapy, and periodic chart reviews, as well as other requirements. Dr. Thongtrangan’s license to practice medicine is active, but he remains on probation.     

The AAOS Board of Directors voted to suspend Dr. Thongtrangan’s 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