August 2004 Bulletin

Professional compliance program to be created

Initial focus will be on expert witness testimony

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

The AAOS Expert Witness Program is moving closer to satisfying the fellowship’s desire for a means to address the issue of inappropriate or fraudulent expert witness testimony.

At its June meeting, the AAOS Board of Directors (BOD) unanimously approved a plan to create a professional compliance program that will permit AAOS fellows and members to file complaints against other fellows and members regarding expert witness testimony and other ethical issues. David A. Halsey, MD, chair of the Expert Witness Project Team, presented the team’s recommendations regarding the scope, structure, protocols, due process procedures and anticipated costs of an assessment and disciplinary program.

Background

Before crafting recommended procedures for a professional compliance program to assess expert witness testimony and possibly discipline members who provide inappropriate or fraudulent testimony, the Project Team established the goals of such a system. Two goals served as focal points:

With the assistance of counsel from the American Association of Neurological Surgeons (AANS), the Project Team considered the following issues that framed the two goals:

Professional compliance program

In addition to the AANS’ professional conduct program, the Project Team also examined procedures implemented by other national medical societies including the American Academy of Ophthalmology, the American College of Obstetricians and Gynecologists, the American College of Radiology, and the American Society of Plastic Surgeons. The proposed procedures ultimately developed by the Project Team present a disciplinary system that should meet or exceed the levels of professionalism employed by these comparable organizations.

Several underlying principles govern the proposed AAOS professional compliance program approved by the Board. When finalized, the AAOS professional compliance program will:

Proposed professional compliance process

An AAOS fellow or member who wishes to file a complaint (the Complainant) about another acts of another fellow or member (the Respondent) must file a signed complaint with the AAOS Office of the General Counsel. The complaint must follow a required format and include all material to be considered.

The Office of the General Counsel will then conduct an administrative review for HIPAA compliance and may return the paperwork to the Complainant if the complaint does not conform to the required format. After the administrative review, the Office of the General Counsel will forward the complaint to the COP for a substantive review.

Committee on Professionalism

The new Committee on Professionalism will be trained to hear and adjudicate alleged violations of Professional Principles. Initially, COP will have eight members appointed by the AAOS BOD. The AAOS will utilize the Knowledge, Education and Interest process to identify volunteers for the COP. The “one member-one committee” rule will not apply to the COP, and members of the Board of Councilors, the Council of Musculoskeletal Specialty Societies, and the Membership, Ethics and Professional Liability Committees will be especially encouraged to apply.

After the COP receives the complaint and material submitted by the Complainant, it will advise the Respondent that a complaint has been filed, provide the Respondent with a copy of the complaint and inform the Respondent that he or she may submit material to be considered by the committee within 60 days. The COP will then review both sets of material and determine whether probable cause warrants a hearing. If a majority of COP determines that a hearing should be conducted, a Hearing Panel of four members will be selected. These names will be provided to both the Complainant and Respondent, who will each have 30 days to challenge the appointment of any Hearing Panel member for cause.

If the COP determines that the complaint is not appropriate for consideration or that probable cause does not warrant a hearing, the chair of COP will advise both the Complainant and Respondent that the complaint is not accepted for further review. The Complainant may then demand a hearing. In such a case, the “British Rule” will apply, and the Complainant will be responsible for paying all the AAOS’ direct costs to conduct a hearing and all of the Respondent’s costs if the ultimate decision is the same or substantially similar to the initial decision reached by the COP.

The hearing

The Hearing Panel Chair will conduct the hearing with assistance of counsel. Formal rules of evidence or law will not apply to hearings; however, the Complainant and the Respondent may be represented by counsel. Each party will have 30 minutes to make a presentation to the Panel, including witnesses, and Panel members may ask questions during the 30-minute time limit. At the conclusion of the hearing, the Panel will meet in executive session and by majority vote determine which of the following alternative findings should be recommended to the BOD

If a majority does not sustain the complaint, the Hearing Panel’s recommendation will be that the Respondent is not found to have violated the Professional Principles.

Appeal to the Judiciary Committee

A copy of the Hearing Panel’s recommendation will be sent to the Complainant and Respondent when it is issued. The Complainant may appeal the Hearing Panel’s recommendation to the Judiciary Committee within 15 days of the Hearing Panel’s recommendation.

The new Judiciary Committee will be trained to hear and adjudicate appeals of alleged violations of Professionalism Principles. Initially, the Judiciary Committee will have five members, selected in the same manner as the members of the COP. The “British Rule” will again be employed, and the Complainant shall be responsible for paying all of the AAOS’ direct costs to conduct an appeal and all of the Respondent’s costs if the ultimate decision of the appeal is the same or substantially similar to the Hearing Panel’s recommendation. An appeal before the Judiciary Committee is required if either the Complainant or Respondent chooses to appear before the BOD later in the process.

The chair of the Judiciary Committee will conduct the appeal hearing with the assistance of counsel. The Complainant and the Respondent will each have 10 minutes to make a statement, but neither party may introduce new evidence.

In executive session, the Judiciary Committee, by majority vote, will determine whether the Hearing Panel’s recommendation should be sustained. If the Judiciary Committee does not uphold the Hearing Panel’s recommendation, the Respondent will be found not to have violated the Professional Principles or AAOS Bylaws. The Judiciary Committee’s recommendation will be sent to the Complainant, the Respondent and the AAOS BOD.

Final decision

The BOD makes the final decision on recommendations received from the Hearing Panel and the Judiciary Committee. Board decisions shall be based on the record, the written recommendation of the Hearing Panel and the written recommendation of the Judiciary Committee. No new information may be introduced to the Board.

The Complainant, Respondent or their representative may appear before the BOD and make a presentation not to exceed 10 minutes on why the party believes that the Judiciary Committee’s recommendation was incorrect. This 10-minute appeal may only be presented if the Complainant or Respondent has pursued an appeal to the Judiciary Committee.

In executive session, the BOD will vote on the recommendations from the Hearing Panel and the Judiciary Committee. A two-thirds vote is required, and the Board’s decision will be effective immediately and not subject to further review or consideration. If the Respondent is expelled, the BOD will make the determination on when that fellow or member may reapply on a case-by-case basis.

Notification and follow-up

Following the Board’s decision, all disciplinary actions will be reported to the fellowship. The NPDB, ABOS, state licensing board, state medical societies and other appropriate organization also will be notified.

Every third person disciplined for expert witness testimony by the AAOS Board of Directors will be required to provide AAOS with a complete list of all subsequent cases in which he or she provides testimony for a period of three years following the disciplinary action. The COP will review testimony from these cases and assess whether the individual’s ethical conduct has been modified.

Cost of the program

Estimated costs of the program are based on projections, estimates and discussions with other medical specialty societies. The costs of implementing a standard-setting professional compliance program for the AAOS will range from $140,000 in 2004 to nearly $500,000 when the program reaches its maturity in 2010. This includes the costs of training the COP and Judiciary Committee, conducting hearings and obtaining consultation from outside counsel. The BOD will consider funding sources for the AAOS Expert Witness Professional Compliance Program at its October 2004 meeting.

Work continues

There is still work to be accomplished and details to be worked out before this professional compliance program is finalized and begins operation. The Project Team will now direct its efforts toward refining the proposed procedures, drafting bylaws language and developing Professionalism Principles that will include expert witness testimony and other ethical issues. The AAOS Expert Witness professional compliance procedures will be operational, at the earliest, in summer 2005.

David A. Halsey, MD, is chair of the Board Project Team on the AAOS Expert Witness Program. He is also chair of the AAOS Council on Health Policy and Practice.

Richard N. Peterson, JD, is general counsel for the AAOS. He can be reached at peterson@aaos.org

Anticipated implementation timeline

  • Fall 2004—Professionalism Principles developed
  • October 14-16, 2004—Board of Councilors and Council of Musculoskeletal Specialty Societies consider proposed amendments to the AAOS Bylaws
  • December 3-4, 2004—Board of Directors considers proposed amendments to the AAOS Bylaws; Board appoints initial Committee on Professionalism (COP) and Judiciary Committee (in preparation of Program)
  • February 23, 2005—Bylaws Committee open hearing at AAOS Annual Meeting
  • February 25, 2005—Association Business Meeting
  • March-April 2005—Fellowship votes on proposed amendments to AAOS Bylaws
  • Summer 2005—COP and Judiciary Committee training

Possible Hearing Panel recommendations

Recommended official actions:

  • No action
  • Censure: A “written reprimand to the Fellow or Member from the AAOS, with no loss of the benefits of Fellowship or Membership. Such censure shall be made a part of the Membership file of the Fellow or Member.” (Association Bylaws, Para. 8.1.a)
  • Suspension: A suspension shall “cause the Fellow or Member to lose the benefits of Fellowship or Membership for a specific period of time as determined by the Board of Directors, after which the individual may be fully reinstated upon review by the Committee on Profession-
  • alism. Suspension shall be for such term as the Board determines is necessary to ensure modification of behavior.” (Association Bylaws, Para. 8.1.b)
  • Expulsion: An expulsion shall “cause the Fellow or Member to be removed from the rolls of the AAOS. An expelled Fellow or Member shall not be entitled to any of the benefits of Fellowship or Membership.” (Association Bylaws, Para. 8.1.c)

Unofficial actions:

  • Letter of Concern: In some circumstances, the Committee on Professionalism may have concerns with the alleged behavior described in the complaint, yet, at its discretion, may decide not to accept the complaint. In these instances, at its sole discretion, the Committee may write a letter of concern detailing its concerns to the Respondent. This letter of concern shall not be considered an official disciplinary action. In addition, the AAOS shall send a notice to the Complainant that a letter of concern has been sent, but not its specific contents.


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