April 2004 Bulletin

Questions answered at Town Hall Meeting

By Carolyn Rogers

An orthopaedic surgeon's impassioned statement decrying “false and misleading” expert witness testimony allegedly being given by AAOS members in Florida courts drew a standing ovation from the several hundred members in attendance at the AAOS Town Hall Meeting, held during the 2004 Annual Meeting.

Brian S. Ziegler, MD, of Merritt Island, Fla., delivered the comment on expert witness testimony, which was one of several topics addressed at the one-hour-plus interactive discussion. The March 11 meeting was so successful, in fact, that nearly a dozen members were still lined up at the microphones —questions in hand—when the session had to conclude to make room for an upcoming symposium.
AAOS 2003-2004 President James H. Herndon, MD, new AAOS President Robert W. Bucholz, MD, and First Vice President Stuart L. Weinstein, MD, fielded the members' questions and comments, which ranged from medical liability reform and binding arbitration agreements to Medicare payment changes and maintenance of competence.
(From left) Robert W. Bucholz, MD, James H. Herndon, MD, and Stuart L. Weinstein, MD, field questions.

One member even proposed that the Academy organize a medical liability reform rally in Washington during next year's Annual Meeting.

The meeting had no set agenda. “Those who come to the microphone will set the agenda,” said moderator William J. Tipton Jr., MD, executive director of medical affairs of the AAOS, at the onset of the meeting.

Fellow Robert Gieringer, MD, asks
questions of AAOS leaders.
Expert witness testimony
Dr. Ziegler spent his time at the mike pleading with the Academy to institute an expert witness review board with a disciplinary component, similar to one in place at the American Association of Neurological Surgeons.

According to Dr. Ziegler, out-of-state orthopaedists who deliver “false and misleading testimony” in court pose a serious threat because the state has no authority to review or discipline them.

The AAOS members in question appear to be willing “to testify to just about anything if the price is right,” Dr. Ziegler said. And they “rely on their membership in this organization to lend validity to their reports.”

Dr. Zeigler said he was aware that the Academy was in the process of creating a new Orthopaedic Surgeons Expert Witness Program, which will involve education, advocacy and potentially disciplinary components. (See article on page 9 for more on the AAOS expert witness program.)

“The time to implement that program is now,” Dr. Ziegler concluded.

The Board already heard the message “loud and clear” from its members, Dr. Bucholz said. According to a recent survey, more than 80 percent of AAOS members favor the development of an expert witness assessment and disciplinary program by which the fellowship might assess orthopaedic expert witness testimony, and possibly sanction (censure, suspend, expel) those found to have testified fraudulently or inappropriately.

“From a gut response, we all favor this concept,” Dr. Bucholz said, adding that the Board of Directors approved the expert witness assessment and disciplinary program “in principle” at its December 2003 meeting.

A project team is currently developing parameters and a business plan for the program and will make recommendations to the Board in June 2004, Dr. Bucholz explained. At that time, the Board “will move ahead with due speed to establish a program that will be effective.”

Medical liability reform
In response to a question about medical liability reform, Dr. Herndon pointed out that, “Just 7 percent of our members have donated $1,000, or less, to our medical liability reform campaign. That's really pathetic. We've raised a little over $1 million, and the trial lawyers have raised more than $17 million, and they are prepared to raise $1 million in every state, if necessary.”

Paul Collins, MD, chair of the Orthopaedic PAC, responded to a speaker who asked if the medical community should form one national PAC, rather than developing individual state or specialty PACs. The member asked if the funding problem maybe due, in part, to trial lawyers putting all their money into one central PAC.

“Actually, the trial lawyers have effectively split their funds among several different PACs as well,” Dr. Collins said. “Because the medical professions is so under-funded, however, we do need to work together on this issue. That's why the DMLR [Doctors for Medical Liability Reform] was developed. The DMLR is setting the stage for us as a profession.”

Medicare payment changes
Another orthopaedist spoke up about a recent change in Medicare payment practices that he said is having a direct impact on both patient care and physician reimbursement. When Medicare split the technical and service components under the skilled nursing payment system, it created a major problem.

Because X-rays are considered under the technical component, which goes to nursing homes, orthopaedists will no longer receive reimbursement for any required follow-up radiographs.

Unfortunately, the X-rays taken at nursing homes are often of such poor quality that the orthopaedist is left with little choice but to take a new X-ray “gratis,” the speaker said.

Daniel Sung, JD, a policy analyst in the AAOS department of socioeconomic and state affairs, said the Academy is aware of the problem with the new regulation and is working on a response.

“We are certainly happy that so many members showed up today,” Dr. Tipton said at the conclusion of the session. “This was an active group who really participated and brought some excellent questions to the table.”

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