AAOS Bulletin - August, 2006

States focus on expert witness testimony

AAOS Professional Compliance Program report

By Kathleen Delaney

Since the April 2005 inception of the AAOS Professional Compliance Program, 10 formal grievance reports have been submitted for alleged violations of the Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony. The AAOS has also received inquiries about alleged violations of the other three SOPs (Providing Musculoskeletal Services to Patients, Professional Relationships and Research and Academic Responsibilities).

After an administrative review of a grievance, the Committee on Professionalism (COP) and the Judiciary Committee hear and adjudicate grievances and appeals, and then make recommendations on a possible professional compliance action to the Board of Directors. Professional compliance actions include censure, suspension or expulsion from the AAOS.

This month, the COP will conduct its second grievance hearing and the Judiciary Committee will conduct its first grievance appeal hearing. The COP considered its first grievance at the AAOS Annual Meeting in March. The AAOS Board of Directors will likely consider the recommendations of the COP and the Judiciary Committee on at least one grievance before the end of this year.

Legislative developments

State legislatures, regulators and the courts continue to focus on expert witness issues. The most recent developments occurred in Mississippi, Delaware, Louisiana and North Carolina.

Mississippi: Effective July 1, 2006, the state medical board may discipline physicians based on expert witness testimony. The board adopted standards to police physician conduct and make physicians more accountable for expert witness testimony. These regulations call for compliance with medical ethics principles, including those of the American Medical Association stating that expert witness testimony is considered the practice of medicine.

In addition, physicians who provide expert witness testimony are prohibited from making or using false, fraudulent or forged statements or documents, or accepting payment contingent upon the outcome of the case. Physicians with Mississippi medical licenses could be suspended or have their licenses revoked, and may be charged a fee of up to $10,000 for the cost of investigating the charges. Physicians who provide false expert witness testimony in Mississippi but who do not hold Mississippi medical licenses could face court injunctions barring them from providing further expert testimony in the state. In addition, their state medical boards could be notified.

Delaware: The state Senate is considering a bill that would provide protection from intimidation for expert witnesses who testify in medical negligence cases. The proposal would make it unlawful for an organization to intimidate, threaten or retaliate against anyone named as an expert witness. It also levies a fine of up to $10,000 for each proven allegation. Professional associations with policies that discourage members from providing expert testimony may also be fined. The AAOS and most professional medical societies encourage members to give truthful, impartial expert testimony.

Louisiana: A federal judge has issued a temporary restraining order preventing the American Association of Neurological Surgeons (AANS) from imposing professional compliance action on one of its members.

The AANS suspended a Louisiana neurosurgeon for two years following a grievance hearing in which the AANS determined that the physician “demonstrated a lack of adequate subject matter knowledge and acted as an advocate for the plaintiff and the plaintiff’s attorney rather than as an unbiased witness” in a Florida medical liability lawsuit. The surgeon filed a lawsuit charging slander and claiming that the defendant doctors distributed the AANS internal report in his community in an effort to “defame and abuse” him for testifying against his colleagues. The court scheduled a hearing in this matter for late July of 2006.

North Carolina: The state Court of Appeals recently ruled that the state medical board may not suspend a physician’s medical license based on expert witness testimony that the physician provides in court. The action stemmed from an appeal by a neurosurgeon who provided expert witness testimony in a medical liability lawsuit.

Upon completion of the suit, the defendant physicians filed a grievance with the AANS, which ultimately suspended the neurosurgeon for “repeatedly misstating the standard of care while testifying as an expert witness.” One of the defendant physicians also filed a complaint with the state medical board, which suspended the neurosurgeon’s medical license for one year. The state medical board could appeal the decision to the state Supreme Court.

Kathleen Delaney is the Professional Compliance Program Administrator. She can be reached at professionalcompliance@aaos.org, aaosexpertwitness@aaos.org, or (847) 384-4047. Visit the Professional Compliance Program Web site.

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