Today's News

Friday, March 12, 2004

AAOS initiates expert witness program, considers hearings

By Richard N. Peterson, JD, and David A. Halsey, MD

In response to fellowship concerns, the AAOS Board of Directors has created a new Orthopaedic Surgeons Expert Witness program. This proactive program will involve educational, advocacy and potentially disciplinary components. Also included are a number of educational and remedial initiatives

On an ongoing basis, the AAOS will monitoring the expert witness activities of other national medical associations, such as the American Association of Neurological Surgeons, (AANS), the North American Spine Society (NASS), and the American College of Obstetricians and Gynecologists (ACOG). AAOS also will exchange information with these groups and monitor the listserv of the Coalition and Center for Ethical Medical Testimony (CCEMT) on a daily basis.

Educational articles on expert witness issues will be written for the AAOS Bulletin and other AAOS publications. Members are encouraged to submit topics or articles for consideration.

An AAOS member whose expert testimony has been questioned will receive a letter and copy of the AAOS Advisory Statement on Orthopaedic Medical Testimony (September 2003). These letters will not include an assessment of the testimony, but will remind members of their legal and ethical obligations.

Under the AAOS Expert Witness Affirmation Statement program, orthopaedic surgeons will sign a statement affirming that 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.

AAOS members are encouraged to participate in a National Database of Expert Witnesses. 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. The orthopaedic surgeon and/or counsel might use this information in preparing the deposition or case.

The AAOS Expert Witness Testimony Clearinghouse Project will be reinvigorated. Orthopae-dic 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 bol-stering or impeaching the testimony of the expert.

Orthopaedic surgeons are encouraged 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).

The AAOS Health Care Delivery Committee and the State Orthopaedic Societies Committee of the Board of Councilors will develop model state legislation or regulations indicating that the provision of medical expert witness testimony is part of the practice of medicine, and encourag-ing state medical boards to take licensure action for fraudulent medical expert witness testimony.

Testimony assessment and disciplinary system
In addition to these initiatives, the AAOS Board of Directors approved an expert witness as-sessment 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 member-ship is one-fifth the size of the AAOS membership.)

The Board also received information from a second survey of AAOS members on the extent of interest in developing an expert witness assessment and disciplinary program. With a 22 percent response rate, the survey found

Project team
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 at the June 2004 Board of Directors meeting. The project team will develop recommendations 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 AAOS Council on Health Policy and Practice. Richard N. Peterson, JD, is General Counsel for the AAOS.

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Last modified 12/March/2004