April 2004 Bulletin

From our readers

Write to The Editor, AAOS Bulletin, 6300 North River Road, Rosemont, Ill. 60018-4262

Expert witness
I have noted over the past year provider organizations (as well as the AAOS) show a welcome, although somewhat belated, interest in the ever-deteriorating medical liability environment in which we have to practice our profession. I note that most of the energy for their reform efforts has been directed against the “outside enemy” — the plaintiff's lawyer and the tort laws that currently define our medical liability environment.

This has been manifest in several forms: Efforts by state medical associations to influence state legislatures to enact tort law reform, similar efforts by the Doctors for Medical Liability Reform at the federal level and efforts to educate the public about the adverse effect the current environment has had on the cost and availability of health care to them.


So far the results of these efforts have been mixed and disappointing, especially at the federal level. This has occurred despite the support of President Bush and the U.S. House of Representatives. The Senate remains stubbornly resistant to reform, presumably because a high percentage of the Senators are themselves lawyers and the highly successful lobbying activity of the plaintiffs' bar.

The ultimate goals of these reform efforts—significant reduction in premiums and number of frivolous suites filed —have been even more elusive. However, very little attention has been paid to the “domestic” enemy within our own ranks—the profligate expert witness, who like Judas, is willing to sacrifice his colleague for “30 pieces of silver,” willingly paid by the plaintiff's attorney. The simple fact is that a medical liability suit cannot proceed against a defendant medical provider without a medical expert witness willing to testify that the defendant provider acted below the standard of care.

In my 10-year experience as a medical advisor to a medical liability insurance company, I was amazed at the ease with which plaintiff's attorneys were able to find medical experts, even in the most frivolous of cases. Moreover, I noticed that many of these experts came from the “halls of academia,” the very same source that provides many members of the leadership of our professional organizations! One has to ask the question: Have we left the foxes in charge of the chicken coop?

In my opinion we would make much more effective and rapid improvement in our appalling liability environment if we “attacked” the “domestic” enemy within our own ranks.

To be fair, the AAOS did make an attempt at this, some months ago, when they canvassed the membership on a program of monitoring and potentially disciplining “experts” who clearly gave misleading and dishonest testimony. However, no significant action was taken and it appears that such efforts have been “shelved.” I suspect because of the potential for lawsuits against the AAOS and other professional organizations participating in such activity.

I believe this view is very short sighted. The testimony given by an expert witness is in the public domain. I do not see any liability risk in monitoring the public activity of such experts and publishing this activity on a Web site, advertised to the membership through the usual channels. I think that once the activities of these experts are brought out into the sunshine, where their colleagues can easily scrutinize their “dirty little secrets,” the process will become self-policing. I predict that such a program would cost a fraction of current efforts to reform our tort system and would be much more effective and timely in achieving our goals.

Anthony E. Twite, MD
Reno, Nev.

Editor's Note: In response to fellowship concerns, the AAOS Board of Directors has launched 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. See the article on page 9 in this issue of the Bulletin for more information. Also, see the article on page 55 on the Town Hall meeting held in San Francisco during the AAOS Annual Meeting; expert witness was the topic of considerable discussion at that meeting.

Specialty hospitals
Specialty hospitals are not a business opportunity; they are the obligation of the last human to interact with the patient (Bulletin, Oct. 2003). It is not pejorative to say patients become a computer code; it is an economic reality of processing claims. I learned arthroscopy in residency but the Blues taught me it was “experimental” when I entered practice; pain, arthrotomy, and ADMISSION pay. Unnecessary admissions were the plan of the per diem system of the Blues, loyal to their parent the American Hospital Association.

Physicians have listened to patient interests (uphill both ways) and continue to advance, now with minimally invasive joints, but kyphoplasty and prompt pain relief (with polymerization of the PMMA) still are admitted. We can no longer effectively advocate for our patients “within” the system. Medicare is a crushing monopoly.

Further, we deserve the same public support that the pharmaceutical firms enjoy; their profits develop new drugs. Not only did the Senate demagogues castigate physicians debating caps, they had enough to spread also to the device companies, whose investments and our largely donated time respond to the desires and needs of the patients we care for and about. We alone face the patients; we are their advocates!

Mark R. Foster, MD
Pittsburgh, Penn.


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