April 2004 Bulletin

AAOS launches Expert Witness Program

By Richard N. Peterson, JD

AAOS unveiled its new Expert Witness Program at the 2004 Annual Meeting. Created in response to the membership's concerns, this program will comprise education, advocacy and potentially disciplinary components. The AAOS is committed to developing an effective Expert Witness Program that responds to the membership's wishes and societal concerns.

Orthopaedic surgeons provide expert witness testimony on behalf of both plaintiffs and defendants in medical liability and other litigation, and their ability to influence the outcome of individual cases has both short-term and long-term effects. Contributing fair and accurate expertise can result in a just outcome in an individual lawsuit. Conversely, medical testimony that is unfair or inaccurate can negatively impact the case at hand and the treating physician. In the long term, misleading or false testimony discredits the profession of orthopaedic surgery and may contribute to the national professional liability crisis. All orthopaedic expert witnesses should provide opinions consistent with the AAOS Code of Medical Ethics and Professionalism.

Assessing testimony
A Project Team, chaired by David A. Halsey, MD, is currently developing parameters for the aspect of the Expert Witness Program that deals with assessing orthopaedic testimony and possibly disciplining members found to have provided inappropriate or fraudulent testimony. The Project Team is expected to make recommendations to the Board of Directors at their meeting in June regarding the scope, structure, protocols, due process procedures and anticipated costs of such a system.

Among the initiatives in place to achieve the goals of the AAOS Expert Witness Program are:

IDEX database
Members are encouraged to participate in a national database of expert witnesses maintained by IDEX, an organization that maintains the Collaborative Defense Network for Expert Witness Research. 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. We estimate that each search will cost approximately $70; however, there is no charge if IDEX does not have information on the expert witness.

If you are named in a lawsuit, IDEX can provide either you or your legal counsel access to their services concerning the plaintiff expert witness in your case. Simply call IDEX at 1-800-521-5596, and advise the representative that you are a fellow of the American Academy of Orthopaedic Surgeons. IDEX will then either fax or e-mail you the appropriate form to make a request, along with a fee schedule listing all of the available searches. The IDEX representative will be available to answer any questions that you may have. IDEX can provide:

AAOS will soon be making the Expert Witness Affirmation Statement available for members to sign. By signing this statement, members affirm 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. Once signed, these statements will be maintained by AAOS and will be easily retrievable for possible use in trial. An electronic means of providing information on whether an AAOS member has signed the Affirmation Statement is currently being developed.

AAOS encourages all members to cooperate and support state medical society expert witness initiatives, including the posting of medical expert witness testimony (in Florida) or state medical society programs to review expert witness testimony (as planned in Georgia). Other states that are currently considering expert witness legislation are Arizona and New Jersey. The AAOS, through its Expert Witness Program and the department of socioeconomic and state society affairs, will develop 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.

The AAOS remains committed to developing and implementing an Expert Witness Program that responds to the membership's desires and societal concerns with the least legal and financial exposure to the organization. Members who contribute to and participate in various aspects the AAOS Expert Witness Program will play a critical role in its success.

Richard N. Peterson, JD, is General Counsel for the AAOS. He can be reached by e-mail at peterson@aaos.org.

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