AAOS Bulletin - April, 2005

The AANS Professional Conduct Program

More than 20 years experience, challenges and impact

By Russell M. Pelton, JD

The proposed AAOS Professional Compliance Program is, in many respects, modeled after the Professional Conduct Program operated by the American Association of Neurological Surgeons (AANS) for more than 20 years. A look at the history and operation of the AANS program may be instructive.

AANS program origins

The AANS Professional Conduct program began in 1983 in response to concerns about the lack of a uniform procedure to deal with complaints of unethical or unprofessional conduct by AANS members. The Professional Conduct Committee (PCC), which had previously been used only sporadically, became the arbiter of all member complaints on ethics and professionalism. The PCC was charged to address complaints on an impartial basis, to conduct hearings when appropriate and to make unbiased recommendations to the Board of Directors. Although not designed to deal only with complaints about conduct by members serving as expert witnesses in professional liability cases, that has been the bulk of the Committee’s activity.

In 1983, the AANS adopted Procedural Guidelines for the Committee’s use in evaluating complaints, specifically insuring due process for all parties concerned. Those Guidelines have been modified but are still intact. It is the Complainant’s responsibility to collect all relevant evidence and to present it to the Committee, including specifications of the precise Sections of the Code of Ethics or Expert Witness Guidelines that are alleged to have been violated. The charged member, or “Respondent,” is then furnished with all of the material and asked to reply to the charges. When the PCC has received both sides’ submissions, it meets in Executive Session and makes a preliminary determination as to whether or not a prima facie case of unprofessional conduct has been laid out, thereby warranting a full hearing.

Over the years, approximately one third of the complaints filed with the Committee are resolved at that point, with the Committee recommending that the charges be dismissed. To date, the Board of Directors has always accepted the Committee’s recommendation for dismissal at this stage.

At the same time that the Procedural Guidelines were adopted, the Board of Directors also adopted Expert Witness Guidelines. These guidelines were intended to ensure a standard of quality and impartiality in expert testimony provided by neurosurgeons on either side in professional liability cases.

Later, in May of 1987, the Board adopted the AANS Position Statement on Testimony in Professional Liability Cases, which further specified standards to be followed in the ethical presentation of expert testimony by neurosurgeons. Those two documents were updated and consolidated in 2003 as the AANS Rules for Neurosurgical Medical/Legal Expert Opinion Services.

The challenges

The AANS Professional Conduct Program was first judicially challenged in 1991. After charges of unprofessional conduct were brought against George Jacobs, MD, a New Jersey neurosurgeon, he filed a Complaint for Injunction against the AANS in Bergen County, N.J., attempting to block the proceedings. His complaint asserted that only a trial judge can measure the appropriateness of expert witness testimony and that a medical professional association should not be permitted to review and possibly criticize that testimony after the trial.

The Trial Court’s decision to grant the AANS Motion to Dismiss the Complaint was affirmed by both the New Jersey Court of Appeals and the state Supreme Court. All concluded that there is nothing inherently improper with a professional society’s reviewing the testimony of a member for possible unprofessional conduct so long as the respondent is given fair due process, which the AANS program provided.

A second court challenge occurred in 1997. The PCC had found that Donald Austin, MD, a Detroit neurosurgeon, provided inappropriate and unprofessional testimony as a plaintiff’s expert in a medical malpractice case. Dr. Austin had testified that permanent damage to a patient’s recurrent laryngeal nerve during the course of an anterior cervical fusion procedure could only occur as a result of negligence on the part of the surgeon and that “the majority of neurosurgeons” would agree with him.

The PCC concluded that Dr. Austin was wrong in both respects and that he had misrepresented either the standard of care or his expertise. It recommended suspension of his membership for six months. The AANS Board of Directors agreed, and suspended Dr. Austin’s membership. After an unsuccessful appeal to the general membership, Dr. Austin filed a suit in the U.S. District Court in Chicago alleging that he was deprived of due process, a charge he later dropped, and also alleging that the AANS program violated public policy by discouraging physicians from testifying for plaintiffs in professional liability cases. The District Court granted the AANS Summary Judgment, which was affirmed on appeal by the Seventh U.S. Circuit Court of Appeals (Donald Austin, MD v. AANS, 253 F.3d 967 [7th Cir.2001]).

In his affirming opinion, Chief Judge Richard Posner praised the AANS Professional Conduct Program as a public service, stating that “this type of professional self-regulation furthers, rather than impedes, the cause of justice.” In January 2002, the U.S. Supreme Court refused to hear a further appeal (Donald Austin, MD v. AANS, 122 S. Ct.807, 151 L.E.2d 693 [2002]). The Austin decision stands today as the definitive court opinion supporting the right, and perhaps the duty, of medical professional associations to discipline their members who engage in unprofessional conduct while testifying as expert witnesses.

While the Austin case was on appeal, a third suit was filed in the U.S. District Court for the Southern District of Georgia on behalf of Gary Lustgarten, MD, who had been charged with unprofessional conduct for the second time. Dr. Lustgarten’s attorneys were all leading members of the Plaintiffs’ Bar, and, indeed, one of his attorneys of record was a senior staff lawyer for the Association of Trial Lawyers of America. However, when the U.S. Court of Appeals affirmed the propriety of the AANS program in the Austin case, Dr. Lustgarten’s attorneys voluntarily dismissed their suit.

The program’s impact

Approximately two thirds of the cases receiving a full hearing before the PCC have resulted in some form of disciplinary action, including eight letters of censure, 15 suspensions of membership and one expulsion from the AANS. Another suspension and an expulsion have been approved by the Board and are currently being appealed to the general membership. Suspensions and expulsions are reported to the National Practitioners Data Bank; censures are not, under the Data Bank’s rules.

Although it is difficult to measure the effectiveness of such a program, several prominent plaintiffs’ lawyers have given it a backhanded compliment. They’ve said that, as a result of the AANS program, it is harder to find a neurosurgeon who will serve as a plaintiff’s expert in a professional liability case than in any other specialty.

Russell M. Pelton, JD, is a partner in the Chicago office of the McGuireWoods law firm and General Counsel to the AANS since 1983. He served as a consultant to the AAOS in developing its proposed Professional Compliance Program.

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