June 2004 Bulletin

Time to stop the cancer within

False and misleading testimony

I am an orthopaedic surgeon from Rockledge, Fla., speaking not just on my own behalf, but also at the request of the Florida Orthopaedic Society. Orthopaedists in Florida are suffocating under the current malpractice crisis. Insurance rates are skyrocketing and [coverage is] becoming unaffordable or unavailable for many throughout our state. Doctors are choosing to risk financial ruin by practicing bare rather than pay exorbitant rates for inadequate, minimal coverage, and by limiting the scope of their practices to reduce liability exposure.

Brian S. Ziegler, MD

The Florida Orthopaedic Society heard the cries of its members and decided to act. While pursuing legislative reform and constitutional amendments in our state, and supporting the national drive for tort reform, we realized these methods were ponderous, slow and simply not enough. How could we ask legislators to make changes to address the malpractice crisis when our own organization was allowing a cancer to fester within, significantly contributing to our own malpractice woes?

The cancer I am speaking of is false and misleading expert testimony given by members of our own Academy.

In Florida and many other states, no malpractice case can move forward without an expert physician affidavit that malpractice occurred. Such affidavits are being given on a regular basis by out-of-state orthopaedic surgeons who rely on their AAOS membership to lend validity to their reports. Because these doctors are not licensed in Florida and are not members of the Florida Medical Society or the Florida Orthopaedic Society, a state organization is powerless to review or discipline them when they lie or mislead. Only our national organization can successfully act to stop these rogue hired guns.

To address this problem, the Florida delegation to the Board of Councilors proposed a resolution to create an Expert Witness review board to discipline fellows who give false or misleading testimony. This resolution was unanimously adopted and forwarded as an advisory opinion to leadership of the AAOS, who responded by evaluating the cost and scope of the proposed program, and surveying our members to gauge their support. Despite seemingly clear results on the first survey, a second survey was issued just to be sure.

The response to both surveys was clear. Between 68 percent and 80 percent of members felt the AAOS should adopt and implement an Expert Witness disciplinary program. Unfortunately, between 10 percent and 22 percent were unwilling to fund this endeavor beyond our current dues. While the Academy leadership has approved the concept in general, it has not yet enacted a program that we feel is essential to our future as orthopaedists.

The expert witness disciplinary program is one we want, need, and demand be implemented. Other organizations, such as the American Association of Neurological Surgeons (AANS), have similar programs, and it is unacceptable for us to be left behind. The majority of our members have already made their support for this program clear, and it is time to act!

The Academy does not need to reinvent the wheel on this issue. The AANS has created a system that works well and preserves due process rights for its members. They have already proved their methodology in court all the way to the Federal Appellate level. Any program our Academy institutes must contain the essential elements of the AANS system: a fair review process that has been upheld by the courts and strict penalties, including expulsion for members who lie and mislead for monetary gain. Members who give false and misleading testimony should also be reported to both the Academy membership as well as their state medical boards, for further disciplinary action.

Some issue has been made about the potential cost of this program, but the answer to this is clear. If our members feel additional dues are too onerous in this era of shrinking reimbursement and increasing expenses, then the answer is to reallocate existing funds to make this program a reality. Public health announcements, educational programs and research funding will be valueless if orthopaedists across the country are unable to remain in business. Although the legal costs involved in a disciplinary program are high, the cost of inaction is even higher.

This organization cannot continue allowing a few of its members to prostitute themselves to the trial attorneys, testifying to just about anything if the price is right. We need the security of knowing that if an orthopaedist testifies falsely against us, our national organization will be there to stop him from doing it again. Expulsion from the AAOS would effectively end a career as a hired gun. If an expert witness review program stopped just one lawsuit, or prevented just one doctor from testifying falsely, that program would be a success, and the time to implement that program is now. We simply cannot afford to wait any longer.

Brian S. Ziegler, MD, is a member of the executive board of the Florida Orthopaedic Society, president of the Brevard County Medical Society and the Florida representative to the AAOS Board of Councilors. He made these remarks during the Town Hall Meeting at the 2004 Annual Meeting. He can be reached at bsziegler@cfl.rr.com

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