February 2004 Bulletin
AAOS initiates expert witness program
By David A. Halsey, MD and
Richard N. Peterson, JD
The AAOS Board of Directors, responding to concerns voiced by the fellowship, has created a new Orthopaedic Surgeons Expert Witness program. This proactive program, which will involve educational, advocacy and potentially disciplinary components, will be officially unveiled during the AAOS Annual Meeting in March.
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Expert witness survey:
The importance of expert witness testimony
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Features of the program include a number of educational and
remedial initiatives:
- Monitoring the activities of other
national medical associations regarding medical expert
witnesses, and in particular, the American Association of
Neurological Surgeons, (AANS), the North American Spine
Society (NASS), and the American College of Obstetricians
and Gynecologists (ACOG), and continuing to exchange
information with these groups. AAOS monitors the listserv of
the Coalition and Center for Ethical Medical Testimony
(CCEMT) on a daily basis.
- Developing a series of educational
articles on expert witness issues for the AAOS Bulletin and
other AAOS publications, starting with this article. In
addition, members are encouraged to submit topics or
articles for consideration.
- Sending letters to individual AAOS
members whose expert testimony has been questioned,
including a copy of the AAOS Advisory Statement on
Orthopaedic Medical Testimony, as it was amended in
September 2003. (Text of statement accompanies this
article.) These letters will not include an assessment of
the testimony, but will remind members of their legal and
ethical obligations.
- Creating an Expert Witness
Affirmation Statement program, through which orthopaedic
surgeons will sign a statement that affirms they will
testify as expert witnesses consistent with the AAOS Code of
Medical Ethics and Professionalism and in accordance with
the merits of the case. These statements will be collected
by AAOS and will be easily retrievable for possible use in
trial. A similar program has worked well for ACOG. A copy of
the affirmation statement and cover letter, as approved by
the AAOS Board of Directors in September 2003, accompany
this article.
- Encouraging AAOS members to
participate in a National Database of Expert Witnesses
(http://www.idex.com). Under an agreement between the AAOS
and IDEX, AAOS fellows may access the database of the
Collaborative Defense Network for Expert Witness Research
and, for a small fee, determine whether a certain individual
has testified as an expert witness, which cases he/she has
testified in, the subject matter of the testimony, etc. This
costs around $70 per inquiry and requires the member to
utilize the AAOS ID for access. The orthopaedic surgeon
and/or counsel might use this information in preparing the
deposition or case. The American College of Surgeons and the
American College of Emergency Physicians provide similar
access to this system for their members.
- Reinvigorating the AAOS Expert
Witness Testimony Clearinghouse Project. Orthopaedic
surgeons are encouraged to send AAOS the expert witness’
complete deposition or testimony. This information may then
be made available to AAOS members and their counsel for use
in bolstering or impeaching the testimony of the expert. The
AAOS conducted a pilot program collecting this information
in the early 1990s.
- Encouraging orthopaedic surgeons to
cooperate and support state medical society expert witness
initiatives, including the public posting of medical expert
witness testimony (in Florida) or state medical society
programs to review expert witness testimony (as planned in
Georgia).
- Developing and supporting model state legislation or regulations indicating that the provision of medical expert witness testimony is part of the practice of medicine and encouraging state medical boards to take licensure action for fraudulent medical expert witness testimony. This will be done through the AAOS Health Care Delivery Committee and the State Orthopaedic Societies Committee of the Board of Councilors.
| Member support for assessment & discipline program |
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Expert Witness Testimony
Assessment and Disciplinary
System
In addition to the above program, the AAOS Board of Directors approved the expert witness assessment and disciplinary program “in concept” at its December 2003 meeting. At that time, the Board received information from physician and attorney representatives of the AANS, a society that has had an assessment and disciplinary program in place for the last 20 years. This program has been upheld in court three times since its inception and appears to be well received by AANS members. The direct annual cost of the AANS program is about $35,000. (The AANS membership is 1/5 the size of the AAOS membership.)
In addition, the Board received information from a second survey of AAOS members to determine the extent of interest by AAOS members in developing an expert witness assessment and disciplinary program. With a 22 percent response rate, the survey found:
- There is strong support for an AAOS
expert witness assessment and disciplinary program among
AAOS members, with nine in 10 finding this an important
issue.
- Eight in 10 respondents indicated
that the AAOS expert witness program should be at the
highest level of involvement by the AAOS; that is, the
program needs to “go beyond monitoring and education and
provide a mechanism for assessing and censuring, suspending
or expelling members, as appropriate, who have violated
AAOS’ standards on ethical testimony.”
- Four percent of respondents overall
reported that the AAOS should NOT be involved in the issue
of expert witness testimony
- Funding support for an AAOS expert
witness assessment and disciplinary program was less strong,
but still supported by a majority of the respondents. The
strongest funding support was in the form of increased
annual dues (51 percent), with 27 percent supporting funding
from current annual dues and 18 percent supporting funding
from a special assessment. Ten percent of the respondents
supporting the assessment and disciplinary program indicated
they did not support increased funds for the program.
- Taking into account those respondents who did not support the assessment and disciplinary program or who supported the less aggressive monitoring and education program, 56 percent of respondents supported the assessment and disciplinary program at the level of $50 or more.
| Expert witness survey:
Funding for assessment & disciplinary program |
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A project team, chaired by David Halsey, MD, will develop parameters and a business plan for the AAOS Expert Witness Assessment and Disciplinary Program and make recommendations to the Board of Directors in June 2004. The project team will develop very specific recommendations for the Board on the scope, structure, protocols, due process procedures and anticipated costs of such an assessment and disciplinary system.
The AAOS is committed to addressing the identified needs of its membership. We intend to create a successful expert witness program, which will address members’ desires and societal concerns in this important area with the least legal and financial exposure to the organization.
David A. Halsey, MD, is chair of the Board Project Team on the AAOS Expert Witness Program. He is also chair of the AAOS Council on Health Policy and Practice.
Richard N. Peterson, JD, is General Counsel for the AAOS. He can be reached at peterson@aaos.org.
Cover Letter
Dear Colleague,
The AAOS has developed the Expert Witness Affirmation, a document that calls for an expert witness to affirm that he or she has relevant expertise and will provide true and impartial testimony based on generally accepted standards of care. Fellows or members who testify as expert witnesses are professionally obligated to adhere to the principles enunciated in the affirmation.
AAOS fellows and members serve as expert witnesses on behalf of both plaintiffs and defendants in medical liability litigation. By providing testimony that is fair and accurate, an expert witness can contribute to a just outcome in the lawsuit and improve the quality of musculoskeletal care generally. Testimony that is unfair or inaccurate has negative ramifications beyond the case at hand; moreover, it contributes to the current professional liability crisis and discredits the orthopaedic surgery specialty.
The enclosed statement relies on the principles expressed in the AAOS Code of Medical Ethics and Professionalism and the Advisory Statement on Orthopaedic Medical Testimony, recently modified by the AAOS Board of Directors to more clearly express the AAOS’ expectations regarding orthopaedic testimony.
The Expert Witness Affirmation Statement should be signed by fellows and members who plan on providing testimony and given to the attorney representing the party for whom they intend to testify. During litigation, the Affirmation can be used to examine the expert witness: witnesses who have signed the Affirmation can use it to bolster their qualifications on direct examination; conversely, witnesses who chose not to sign it can be cross-examined about their failure to do so.
A fellow or member who has been named as a defendant in professional liability cases should make defense counsel aware of the AAOS Expert Witness Affirmation as well as the AAOS Advisory Statement on Orthopaedic Medical Testimony and the AAOS Code of Medical Ethics and Professionalism.
Sincerely,
James H. Herndon, MD, MBA
President
American Academy of Orthopaedic Surgeons
American Association of Orthopaedic Surgeons
Expert Witness Affirmation Statement
As a member of the medical profession and a fellow or member of the American Academy of Orthopaedic Surgeons/ American Association of Orthopaedic Surgeons, I affirm my duty, when giving evidence or testifying as an expert witness, to do so solely in accordance with the merits of the case. Furthermore, I declare that I will uphold the following professional principles in providing expert evidence or expert witness testimony:
- I will always be truthful.
- I will conduct a thorough, fair and
impartial review of the facts and the medical care provided,
not excluding any relevant information.
- I will provide evidence or testify
only on matters in which I have relevant clinical experience
and knowledge in the areas of medicine that are the subject
of the proceeding.
- I will evaluate the medical care
provided in light of the generally accepted standards,
neither condemning performance that falls within generally
accepted practice standards nor endorsing or condoning
performance that falls below these standards.
- I will evaluate the medical care
provided in light of generally accepted standards that
prevailed at the time of the occurrence.
- I will provide evidence or
testimony that is complete, objective, scientifically based
and helpful to a just resolution of the proceeding.
- I will make a clear distinction
between a departure from accepted practice standards and an
untoward outcome.
- I will make every effort to
determine whether there is a causal relationship between the
alleged substandard practice and the medical outcome.
- I will submit my testimony to
scrutiny, if requested, by professional organizations,
hospitals, peer review bodies and state medical and/or
licensing boards, as appropriate.
- I will not accept compensation that is contingent upon the outcome of the litigation.
Name: _____________________________________
Signature: _____________________________________
American Board of Orthopaedic Surgery Certification Date:
_____________________________________
Advisory Statement on orthopaedic medical testimony
Orthopaedic surgeons are frequently called upon to provide orthopaedic medical testimony in legal or administrative proceedings. In some jurisdictions, criteria for medical witnesses may be inadequate and as a result, unqualified physicians may testify as orthopaedic expert witnesses. It is in the public interest that orthopaedic medical testimony be readily available and objective.
The Code of Medical Ethics and Professionalism of the American Academy of Orthopaedic Surgeons (AAOS) provides that:
“Orthopaedic surgeons are frequently called upon to provide expert medical testimony in courts of law. In providing testimony, the orthopaedic surgeon should exercise extreme caution to ensure that the testimony provided is nonpartisan, scientifically correct and clinically accurate. The orthopaedic surgeon should not testify concerning matters about which the orthopaedic surgeon is not knowledgeable. It is unethical for an orthopaedic surgeon to accept compensation that is contingent upon the outcome of litigation.”
The AAOS believes that, to be consistent with the Code of Medical Ethics and Professionalism, and to limit uninformed and possibly misleading testimony, individuals providing orthopaedic medical testimony should be qualified for their role and should follow a clear and consistent set of ethical guidelines.
Orthopaedic Treating Physicians
As a citizen and a professional with special training and experience, the treating orthopaedic surgeon has an ethical and legal obligation to provide reasonably required factual or administrative testimony. If the orthopaedic surgeon’s patient has a legal claim and requests his or her treating physician’s assistance, the orthopaedic surgeon should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights. The orthopaedic treating physician has an ethical obligation to provide truthful, scientifically correct, and clinically accurate testimony and is entitled to reasonable compensation for the time spent to prepare and give testimony. A request for unreasonable compensation by the treating orthopaedic surgeon may be a de facto refusal to testify and may be considered unethical. The treating orthopaedic surgeon may become an expert witness, but is not ethically bound to do so.
Orthopaedic Expert Witness: Qualifications
The orthopaedic expert witness should have a current, valid and unrestricted license to practice medicine in the state(s) in which he or she practices.
The orthopaedic expert witness should be a diplomat of or have satisfactorily completed the educational requirements of the American Board of Orthopaedic Surgery (or an orthopaedic surgery specialty board recognized by the American Board of Medical Specialties), as well as be qualified by clinical experience, education or demonstrated competence in the subject of the case.
The orthopaedic expert witness should be familiar with the clinical practice, the applicable standard of care and the relevant facts and history of the case at the time of the incident.
The orthopaedic expert witness should be engaged in the active practice and/or teaching of orthopaedic surgery or be able to demonstrate familiarity with present practices.
Orthopaedist Testimony: Guidelines for Behavior
The orthopaedist providing opinions and/or factual testimony should review and testify fairly and impartially and should not adopt an advocacy or partisan position.
The orthopaedic expert witness should be knowledgeable regarding concepts and practices relevant to commonly accepted standard(s) of care at the time of the incident. The attorney for the party who calls the orthopaedist should be informed of all favorable and unfavorable information developed in the orthopaedist’s evaluation of the case.
The orthopaedic expert witness is obligated to state the basis of the testimony, to indicate if he or she is expressing a personal view, to state if this opinion differs from current commonly accepted, evidence-based practice and to acknowledge if differing opinions exist.
Compensation for providing testimony should be reasonable and commensurate with the time and effort required in preparing for the deposition and appearing in court. It is unethical to link compensation to the outcome of the case.
The expert witness should be aware that failure to provide complete and truthful testimony may result in criminal prosecution for perjury, civil suits for negligence and revocation or suspension of his or her professional license. Failure to maintain high ethical standards may result in censure, suspension or expulsion from the American Association of Orthopaedic Surgeons and the American Academy of Orthopaedic Surgeons.
This advisory statement can be viewed online on the AAOS Web site.
