A view from the Committee on Professionalism and Judiciary Committee

During the 13-year history of the AAOS’ Professional Compliance Program (PCP), common themes have emerged in the grievance submissions.

This article, the first of an ongoing series, examines some of the lessons learned under the Standards of Professionalism (SOP) for Expert Opinion and Testimony.

In the early 2000s, AAOS members wanted to evaluate the conduct of other members based on common ethical themes. As a result, AAOS created the PCP and adopted six SOPs that outline the minimum behavioral requirements for all AAOS members in the following business activities and professional relationships:

1. Orthopaedic Expert Opinion and Testimony (adopted April 18, 2005; amended May 10, 2010)
2. Providing Musculoskeletal Services to Patients (adopted April 18, 2005; amended April 24, 2008)
3. Professional Relationships (adopted April 18, 2005)
4. Research and Academic Relationships (adopted May 12, 2006)
5. Advertising by Orthopaedic Surgeons (adopted April 18, 2007)
6. Orthopaedic Surgeon-Industry Relationships (adopted April 18, 2007; amended April 23, 2012)

The PCP accepts only grievances filed by one member against another which allege one or more SOP violations. The complaining party, the grievant, must submit a signed and dated grievance report form that identifies the alleged SOP violation(s) and provides supporting materials. If the grievance passes an initial administrative review, AAOS notifies the respondent, the individual against whom the grievance has been filed, and provides him or her an opportunity to respond to the grievance. The Committee on Professionalism (COP) reviews the submitted materials.

The COP is chaired by Jeffrey A. Baum, MD, and members include Thomas W. Currey, MD; Stephen G.J. Eckrich, MD; Thomas B. Fleeter, MD; Thomas J. Grogan, MD; James J. Hamilton, MD; Peter J. Mandell, MD; Tamara L. Martin, MD; and William R. Martin III, MD.

After conducting an objective and substantive review of each grievance, the COP determines prima facie, whether the first review merits moving forward to a hearing. Grievances with insufficient evidence are rejected. In some instances, the COP has dismissed a grievance after the respondent’s experts provided accurate opinions and testimony. If a hearing is scheduled, the parties appear before the COP to support their respective positions. Following the hearing, the COP issues its report and recommendation to the AAOS Board of Directors.

Under the proposed bylaw amendments, any COP findings that recommend official compliance action be taken against a respondent will automatically undergo a second level of review by the Judiciary Committee, chaired by Robert H. Sandmeier, MD. Members include A. Herbert Alexander, MD; William J. Hopkinson, MD; John P. Lubicky, MD; James T. Ninomiya, MD; and Patrick St. Pierre, MD.

The Judiciary Committee reviews all the underlying materials and examines whether (1) the parties were provided due process and (2) whether the COP’s recommendations are supported by the weight of the evidence.

Finally, the Judiciary Committee makes its own recommendation to the board of directors, which makes the final determination on any official action taken in grievances. The board has the option of taking no action or issuing a reprimand, censure, suspension, or expulsion. Unofficial action, such as a confidential letter of concern, may also be issued to either party concerning issues raised in the grievance process.

AAOS encourages members to serve as expert witnesses as legal experts, independent medical reviewers, or peer reviewers. It is vital that the public have access to reliable expert witnesses who provide accurate medical opinion and testimony. False, misleading, or inaccurate testimony does a disservice to all parties, including patients, healthcare practitioners, the legal system, and the medical profession.

The SOPs require AAOS members serving as experts to be impartial; base opinions on verifiable facts, relevant literature, and experience; and obtain and review all appropriate medical records, images, and documents.

Common situations provide key takeaways

Having reviewed grievance submissions over the past 13 years, the COP and Judiciary Committee are uniquely situated to share some important and educational takeaways for orthopaedic expert witnesses. What follows are situations frequently evaluated in the PCP.

Situation: Experts are frequently asked to sign affidavits supporting a potential claim of liability. In many grievances, these affidavits are based solely upon a verbal discussion with an attorney but involve no review of medical records. Although assured that there will be an opportunity to amend the opinion after reviewing records produced later in discovery, experts have still offered medical opinions, relying on the attorney’s assessment rather than on an independent and thorough review of the medical records.

Point: An orthopaedic surgeon is solely responsible for the accuracy of his or her opinions. Although experts undoubtedly want to be helpful to the party retaining their services, they should also remember that attorneys are legal counsel to the party, not the expert. An expert can best protect his or her reputation by only providing medical opinions and statements that are supported the medical evidence and after conducting an independent review of medical records and images. If an affidavit is prepared by someone else, the expert should agree with it before signing it. It sounds simple, but each opinion must stand on its own and can be reviewed by as many as 20 orthopaedic peers for compliance with the Expert Opinion and Testimony SOP.

Situation: The same applies for incomplete information. For example, an expert was provided a radiology report without the actual images. In that case, the exact location of an abscess was at issue and was insufficiently described in the radiology report. Both committees found the images to be pertinent in forming an expert opinion. In fact, the respondent agreed with this conclusion during his appearance before the committees, noting that his opinions or statements would have developed and/or concluded differently had he reviewed the images.

Point: The SOP requires an orthopaedic expert witness to “seek and review all pertinent medical records and applicable legal documents, including relevant prior depositions, before rendering any statement or opinion of the medical or surgical management of the patient.” As an expert, determine what medical records and materials you need to form an opinion. If you suspect additional records exist and may be necessary to form an accurate opinion, request them. If the records were not provided, include a disclaimer which (1) indicates that your opinion is based on records provided and (2) reserves the right to change your opinion if additional records are provided.

Situation: The treating physician should be mindful that comments made about prior medical care and treatment can unintentionally make him or her an expert witness. On several occasions, subsequent treating physicians provided review letters to attorneys or insurance companies that were critical of care provided by others. The treating physicians’ opinions are frequently based solely on personal preferences, assumptions, and/or an incomplete review of medical records. On occasion, these criticisms have been offered in the absence of any request.

Point: As a treating physician, it is easy to cross the line between being a fact witness and becoming an expert witness, especially when a physician’s testimony goes beyond the care he or she provided the patient and becomes an opinion on the standard of care provided by another physician. Both committees have found this situation to be of concern, particularly when the treating physician’s intention was to help the patient, not unwittingly discredit a colleague.

Whether acting as a treating physician or an expert, any medical opinions offered should be accurate and based on supporting records and/or literature. Once on the record, the opinion cannot be easily retracted unless there is a subsequent submission to clarify the opinion or correct the error. In other words, every expert opinion matters, no matter the format or forum. The SOP preamble makes clear that “writing expert opinions, signing certificates or affidavits of merit, reviewing medical records, and providing sworn testimony” are all subject to review under the SOP.

The PCP was designed to be educational for AAOS members through publication of the board’s compliance actions.

While parties involved in the grievance process may find it to be emotionally challenging, it also can be beneficial as an opportunity to reflect, learn, and improve.

The SOPs were not intended to sanction members who provide honest and supported expert opinions. Instead, the PCP was created to hold AAOS members accountable to standards which promote better patient care and maintain the integrity of the medical profession.

The COP and Judiciary Committee hope these examples from the PCP help AAOS members render objective expert opinions and support those opinions with a thorough review of all pertinent medical records and documents.

For more information about the PCP, visit www.aaos.org/profcomp.

Members of the Committee on Professionalism and Judiciary Committee contributed to this article.

Thomas B. Fleeter, MD, is a member of the AAOS Committee on Professionalism and the Practice Management Instructional Course Committee.

Thomas J. Grogan, MD, is a member of the AAOS Committee on Professionalism.