June 2004 Bulletin

AdvaMed Code

Thank you for including an article in the Annual Meeting edition (March 10, 2004) of the Bulletin – Academy News – regarding the AdvaMed Code of Ethics for Interactions with Health Care Professionals. However, I would like to point out one significant factual error in the article. The article states that, “The AdvaMed Code is silent on whether member companies may pay for the reasonable travel, meals or hospitality expenses of health care professionals (not faculty) attending a third-party educational conference.”

This is incorrect. The Code’s Frequently Asked Question #11 asks “Can a Member provide an educational grant to support the attendance of a health care professional at a third-party educational conference?” The answer is: “The Code contemplates that grants would be made to the conference sponsor or training institution, which will select the attendees. Furthermore, the Code contemplates that the benefited attendees would be medical students, residents, fellows, or other health care professionals in training.” This answer clearly states that companies may not pay for reasonable travel, meals, or hospitality expenses of health care professionals (not faculty) attending a third-party educational conference.

We are most grateful for AAOS’s efforts to communicate the facts about the AdvaMed Code and appreciate your clarifying this area of confusion.

Blair Childs
Executive vice president, AdvaMed
Washington, D.C.

Expert Witness

The April 2004 Bulletin carried an informative article by Richard N. Peterson, JD, “AAOS Launches Expert Witness Program,” and a letter to the editor by Anthony E. Twite, MD. I would like to continue the discussion of this important topic.

Who is this “domestic enemy within our own ranks” that Dr. Twite refers to? Sometimes the identification of an enemy is elusive. According to Dr. Twite, the enemy includes academicians (his fox-and-chicken analogy) who may well provide fair and accurate evidence-based testimony. Any orthopaedist might also be included. Are they to be considered Judas for providing testimony about a physician, who, for example, failed to detect a serious complication, failed to properly manage that complication and failed to openly discuss the problem with the patient? These are, in fact, physicians who, as Mr. Peterson described, are contributing to a “just outcome in an individual lawsuit.”

The proposal for the AAOS Expert Witness Program to include a disciplinary component against members for providing “inappropriate” testimony must be carefully weighed and considered. I fear that those who would give inaccurate testimony care little about any type of AAOS discipline. On the other hand, I suspect the potential of being dragged into a witch-hunt process will have a chilling effect upon the orthopaedist who would be willing to provide appropriate testimony. Does such a process serve the public good? I would further offer that a defendant physician feels that any testimony against him or her is “inappropriate.”

How will an AAOS committee determine the appropriateness of testimony? Even experts do not always agree in medical-legal disputes. I am aware of a study of alleged negligence cases in which clinical peers could come to agreement among themselves only 50 percent of the time.

There has been talk of posting the names of orthopaedists who are deemed to have provided unfair, inaccurate, misleading and false testimony. I would offer that, should a process be put into effect, the names and case details of the malpractice defendant also be publicized. Airing of one’s dirty laundry can be a learning experience for us all, as is reading the very fine and informative AAOS publication Managing Orthopaedic Malpractice Risk.

Certainly, I foresee the AAOS membership being very excited about such an expert witness program. The members of the American Association of Neurological Surgeons consider their expert witness program to be one of their highest-ranking member benefits. It is reported that there is “standing room only” when a member is up for censure at an annual business meeting. Now, finally, we see a way to increase attendance at an AAOS business meeting! Let us not forget, however, that professional liability insurance premiums for neurosurgeons have not decreased since the start of their program.

I have been privileged to serve on the Governor’s Commission for Patient Safety here in Missouri. We are charged with making recommendations to improve patient safety and decrease medical errors. I have learned much listening to witnesses before our commission. A limited number of doctors (3 percent) are responsible for a disproportionate share of medical malpractice costs (20 percent). The bulk of the errors and problems in professional liability cases are physician-driven.

Although there are proposals to address “problem physicians,” our state medical association steadfastly opposes the concept of medical whistle-blowers identifying physicians with unsafe practice patterns. Such whistle-blower activity would, it is said, “create an atmosphere of fear and suspicion among physicians.” That is a short-sighted and narrow view. Coming forward to report error in a non-punitive manner may well, in the long run, improve patient safety.

Understanding why patients bring suit against their doctors lies at the root cause of the problem. There is research showing a correlation between unsolicited patient complaints and the likelihood of a doctor being sued. The frequent causes for these complaints were poor communication WITH the physician and poor access TO the physician. I see little attention given recently in our publications promoting the admirable AAOS Communication Skills Mentoring Program (CSMP). The CSMP has the potential to ameliorate the problem of negative patient complaints. As the AAOS addresses the professional liability crisis, I would urge that the CSMP be given a prominent role in ameliorating this problem.

By the time this letter is published, the AAOS Board of Directors will have met in June and heard its Project Team report on the issues regarding the scope, structure and due processes of an AAOS Expert Witness Program. I am sure the Board will have acted in a manner that is appropriate for the best interests of the membership and our patients. Our public image should be one of protecting and improving patient safety.

Who then is the enemy: Judas orthopaedists, trial lawyers, insurers or patients? There are many answers but I have learned we must not forget to look into the mirror. I close by quoting cartoonist Walt Kelly’s Pogo: “Resolve, then, that on this very ground, with small flags waving and tiny blasts of tiny trumpets, we shall meet the enemy, and not only may he be ours, he may be us.”

Alan H. Morris, MD
St. Louis, Mo.

Editor’s note: For further comments on this issue see Point of View and Across the President’s Desk.

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