June 2004 Bulletin

Across the president’s desk

Creating a workable expert witness program

Robert W. Bucholz, MD

Accurate, unbiased expert witness testimony is widely recognized as a critical component of a fair medical liability tort system. All expert opinions should be based on scientific evidence and provided by prudent orthopaedic surgeons who are active and experienced in the specific medical issues in dispute. Several medical associations have initiated expert witness programs to educate their members on the responsibilities of being an expert witness and to discipline those members who fail to meet these standards.

In 2003, the AAOS Board of Directors (BOD) voted to implement an administrative and educational program that includes monitoring expert witness programs of other national medical societies, publishing Bulletin articles on the subject, distributing an expert witness affirmation statement, offering member access to the IDEX national database and providing assistance to state orthopaedic societies, which also are addressing this issue. AAOS General Counsel Richard Peterson, JD, described this program in the April 2004 Bulletin.

The BOD also approved, in concept, a disciplinary program to address the concerns of fellows. A project team chaired by David A. Halsey, MD, has been diligently working on developing an effective, legally defensible program for the AAOS and will be reporting their recommendations and business plan to the BOD this month.

In this President’s report, I want to provide you with some insight into the complexity of this process and the difficulty of this task. There are four specific issues that merit mention.

Scope of program

What should be the scope of a disciplinary program — a narrow focus on expert witness testimony or a broader program encompassing other serious violations of the AAOS Code of Ethics? Some associations such as the American Academy of Ophthalmologists have implemented global ethics programs in which complaints of all ethical violations by their fellows can be reported by other ophthalmologists, insurers, patients and hospitals. More than 150 complaints are investigated annually. The American Association of Neurological Surgeons (AANS) started its global ethics program 21 years ago to consider alleged ethical violations of their members brought to their attention by other AANS members; 90 percent of AANS ethics cases deal with expert witness testimony. The AAOS has no history as an oversight body for ethical and professional complaints from the fellowship. Although there is an AAOS written disciplinary policy and process, it is infrequently used.

There are several advantages and disadvantages to a wider ethics-based disciplinary program. The American public’s expectation is that the AAOS, as the leading orthopaedic professional association, should police its fellowship on all serious ethical and professional issues. A disciplinary program exclusively aimed at expert witness testimony would be viewed publicly as self-serving.

Equating false and misleading expert witness testimony as a serious ethical violation on par with other ethical and professional problems (such as revocation of medical license or conviction of a felony) would enhance the importance of accurate, unbiased testimony. Additionally, a general ethics-based disciplinary program would facilitate the inclusion in our Code of Ethics of other important concerns of the fellowship, such as the need for impartial assessment of orthopaedic surgeons labeled as disruptive by their hospital system.

On the other hand, a broad ethics-based disciplinary program might overwhelm the financial and personnel resources of the AAOS. The number of potential ethical issues is large, covering such areas as revocation of license, felony conviction, loss of American Board of Orthopaedic Surgery (ABOS) certification, scientific fraud, conflicts of interests with industry, marketing and advertising fraud, unethical fee schedules and the all-too-common patient complaints about their orthopaedic care. The fellowship does not want the AAOS to be a regulatory body. State licensure boards, the ABOS, the Orthopaedic Residency Review Committee and hospital credentialing committees should be doing this work.

The scope of an ethics-based disciplinary program will probably be somewhere in the middle. The AAOS ethics-based disciplinary program will likely commence as a small program focused on serious ethical violations such as providing false or biased expert witness testimony, loss of licensure and felony convictions.

Due process

It is imperative that the AAOS develop detailed policies, procedures, and appeal processes for our ethics-based disciplinary program. The program must be medically and legally defensible.

The 21-year-old AANS expert witness program has been legally challenged and defended successfully on three occasions. Legal counsel for the AANS has been consulted by the AAOS and they have emphatically stressed the importance of the AANS written policies and procedures in their successful defense.

Most medical liability cases fall in the gray zone of litigation. Rarely are the scientific facts of any given suit black and white. Very specific guidelines for testimony review and training the testimony reviewers are thus mandatory. A fellowship-approved change in the AAOS Bylaws would be required and certain sections of the Code of Ethics appropriately modified to incorporate minimum standards of appropriate conduct. Any new disciplinary program must be publicized to the fellowship so that they understand their responsibilities to retain their AAOS fellowship. A fair and timely appeals process will have to be instituted.

The AAOS can surely benefit from the past experience and legally sustainable policies of the AANS as we formulate our program. Due diligence in writing our policies and procedures to ensure due process to all respondents will minimize legal challenges and costs of our program.

Timing of implementation

The lead-time for full implementation of a disciplinary program will be 1 to 2 years. Why so long? There are several unavoidable reasons for this delay.

First, the expert witness guidelines and policies must be written and tested. A bylaws change through the standard AAOS process will not be in place until early 2005. The new ethics policy and regulations must be widely distributed to the fellowship. Volunteer fellows identified for the review panels need to be trained. Most importantly, only closed cases can be reviewed. The AAOS cannot insert itself into the middle of active medical liability litigation. No expert witness testimony violation occurring prior to the bylaws change and the publicity of the new policy can be reviewed. Any such retroactive enforcement of the program would not be legally defensible.

For all of the above reasons, a long lead-time, although regrettable, is inevitable.

Measuring program efficacy

The goal of any ethics-based or expert witness testimony disciplinary program is to change behavior. The AAOS wants to decrease the volume of inaccurate, biased testimony in orthopaedic medical liability suits. Measuring our success in this goal is problematic.

During the 21 years the AANS disciplinary program has been operating, only one neurosurgeon has been expelled from its membership, although 12 members have had their membership suspended and eight others have been censored by that association. All other measures of success of the AANS program are purely anecdotal. Quantitatively assessing the impact of such a disciplinary program and thus defining its cost-benefit to the association is impossible.

Creative methods to enhance the efficacy of a program must be explored. Reporting the results of testimony review panels to state licensure boards, the ABOS and the National Practitioners’ Data Bank may be more effective in changing behavior than mere censorship and expulsion by the AAOS.

UUA costly disciplinary program will require quantitative measures of success.

The future

Two 2003 fellowship surveys showed strong support for a disciplinary program. While the Board of Directors has supported the concept, it is our fiduciary responsibility to ensure that the program is effective, reasonably priced, legally and medically sustainable, and quantifiable in its impact.

The project team charged with designing our program is doing an admirable job in addressing these responsibilities. An ill-conceived program would be counterproductive to our common goal. I ask the fellowship to be patient as we design and implement what hopefully will become the model program for all medical associations.

Robert W. Bucholz, MD


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