A Critique of the American Academy of Orthopaedic Surgeons Standards of Professionalism Regarding Orthopaedic Expert Opinion and Testimony

by Dale D. Dalenberg MD

 

As a practicing orthopedic surgeon and Fellow of the American Academy of Orthopaedic Surgeons who occasionally offers his services as an orthopedic expert witness, I have become concerned with the expert witness ethics program of the Academy. I am particularly concerned with the Mandatory Standards set forth in the document entitled “AAOS Standards of Professionalism: Orthopaedic Expert Opinion and Testimony.” I agree with the Academy that setting ethics standards for expert witnesses is an admirable goal. However, I am concerned with the standards as they are currently written. I am particularly concerned that the current 13 Mandatory Standards may have been created as a mechanism of “back door tort reform” in lieu of seeking actual legislation, are being inconsistently applied, and that the standards themselves (as they are currently worded) are not well grounded in the law.

 

I was an early signer of the AAOS Expert Witness Affirmation document in 2004. I attended the Academy’s seminar in 2008 “Telling the Whole Truth: Orthopaedists as Expert Witnesses and the Grievance Procedure.” Thus, for years I have been reviewing my compliance with the 13 Mandatory Standards outlined in the expert witness ethics program, usually as a separate step of preparation the night before any deposition or trial testimony I have given. I make every effort to be an ethical expert. But the more I have learned about the law with respect to expert testimony, the more I have come to realize that the current Mandatory Standards need revision.

Also, I have read with interest the various reports that come out from time to time about orthopedic experts who are impeached by the AAOS for violations of the Mandatory Standards. While I suspect that some of those so-called experts deserved to be impeached, I am concerned that the impeachment process has been designed to restrict the availability of experts to plaintiffs’ attorneys while doing nothing to ensure good defense expert testimony. I have never seen a defense expert impeached under the ethics program, and yet I have personally witnessed inappropriate or fraudulent defense expert conduct in several cases. I am not even sure that there is a mechanism in place for filing a grievance against a defense expert. Moreover, scrutiny of the flaws in the Mandatory Standards invites the suspicion that the standards were possibly written as an attempt at back door tort reform and are not entirely consistent with principles set forth in current law and precedents that have existed in American courts for over a century. The Mandatory Standards seem designed to scare orthopedic surgeons away from being plaintiffs’ experts (due to fear of professional censure). The Standards seem to have been designed with the idea that maybe lawsuits won’t go forward if Fellows of the Academy do not participate in the process. And yet, it strikes me that the Academy should instead desire to be the source of the best, most scientific testimony available in American courts, whether that be for plaintiffs or for defense.

As a Fellow of the American Academy of Orthopaedic Surgeons, I strongly believe that we as a professional society need to re-design the professional compliance program as it pertains to expert

witnesses. We need to redouble our efforts at meaningful tort reform but abandon our efforts to use the expert witness Mandatory Standards as an attempt at back door tort reform. We need to value the orthopedists who have spent the extra time and effort to become adept at medico-legal work, and we need to support their efforts to bring science to the courtroom, both on behalf of defendants and on behalf of plaintiffs. We need to represent the AAOS as the best professional society with the most reliable testimony in the courtroom on all matters pertaining to musculoskeletal medicine and surgery. We cannot achieve those venerable goals by persecuting experts from within our ranks. We cannot achieve respectability in the law by choosing to intimidate only plaintiffs’ experts while failing to perform oversight on defense experts. We need to use our Mandatory Standards on expert testimony as an educational tool to make our members stronger and more effective in the courts, not to restrict the availability of experts or destroy their credibility in future cases by needlessly censuring them. The professional compliance program should be an educational program, not a punitive program, except in the most egregious of cases.

To summarize my background in this area, I have reviewed approximately 400 potential medical tort cases for plaintiffs’ attorneys in the past 12.5 years. In 81% of those cases, I have decided in favor of the defendant physicians or health care providers and refused to “take” the case as a plaintiffs’ expert.  In the vast majority of the cases that I rejected, no lawsuit was ever filed. Therefore, my work as a plaintiffs’ expert has squelched approximately 324 lawsuits and saved the system several million dollars. Do I try to get plaintiffs’ cases? No, my interest is solely in bringing science to the courtroom; I have no preference for plaintiff’s cases versus defense cases. As I don’t advertise my expert witness services, I don’t have any control over whether plaintiff or defense attorneys call me. It turns out that my word-of-mouth referrals over the past decade spread among plaintiffs’ attorneys rather than defense attorneys, as I was initially trained to do this work by a plaintiffs’ attorney, so consequently plaintiffs’ firms have been the ones that call on me. (I happened to meet that plaintiffs’ attorney when I gave deposition testimony against him that got an orthopedist released from a case, and he liked my work, and after that he started sending me plaintiffs’ cases to review).

Given the fact that, in 81% of the cases I review, I make a finding for defense, the first thing I tell all of my orthopedic colleagues about expert witness work is: Plaintiffs’ experts are vital to the orthopedic profession—they prevent MOST of the lawsuits. On the other hand, defense experts generally cannot prevent lawsuits. We as a profession SHOULD NOT want to intimidate plaintiffs’ experts. The American Academy of Orthopaedic Surgeons should take charge of training and providing experts to plaintiffs’ attorneys—that is the best way of managing what happens in the courtrooms, of ensuring that the best science regarding musculoskeletal medicine and surgery is presented in the courtrooms, and that only meritorious cases go forward.

Plaintiffs’ experts should be highly valued by the Academy. They should be trained to do their job by the Academy. Plaintiffs’ experts do far more good to the community of orthopedic surgeons than any perceived harm they might do. However, the professional compliance program, as it currently exists, implies that plaintiffs’ experts are not valued and instead are actively discriminated against. Trained plaintiffs’ experts are in a unique position to keep doctors from getting sued. By contrast, defense experts never prevent lawsuits. It is plaintiffs’ experts that prevent lawsuits. As a defense expert, my job is to make the best case for the performance of a doctor being sued; I cannot imagine turning down even a bad defense case, as I would try to make the best case I can given the set of facts. But as a plaintiffs’ expert, I can stop the whole process before it ever gets started. As a plaintiffs’ expert, I do not have to take a bad plaintiffs’ case—a bad plaintiffs’ case gets turned down, and the lawyer usually does not file the case. Good lawyers thank the expert for saving them the effort and lots of money—if a lawyer argues with the expert about turning down a plaintiffs’ case, that is when a good plaintiffs’ expert has to decide whether he wants any more referrals from that lawyer.

I have developed a system over the years about how I approach medical tort cases. The first thing I do is make sure I am really an expert. If it is a pediatric scoliosis case, for instance, then I don’t take the case, because I do not operate pediatric scoliosis cases in my practice. The second thing I do is send the lawyers my CV, fee schedule, medical testimony list, and the Academy’s 13 Mandatory Standards for expert witnesses. That way the attorneys are on notice that I need everything, including all pertinent records and depositions in the case. They are also on notice that I reserve the right to alter, amend, or even abandon my opinions if further information comes to light that would cause me to do so. The next thing I do is screen the case and give the lawyers BOTH sides of the case, both the plaintiff and defense sides. Many cases stop right there, because the plaintiff lawyers see what a slippery slope they are on when it comes to making their case prevail over the defense case. Finally, if it looks like one of the 19% of cases that are going to go forward with me involved, I get a complete set of records and imaging studies and go on from there. All cases require a complete record review three times—the initial review, prior to a deposition, and prior to court.

This is not easy work. It took me several years to get half-way good at it, and I am still learning. One thing I learned is that physicians are not ideally suited to being experts without lots of additional expert training. Otherwise, they will be “eaten alive” at depositions and in court. This is another reason that the Academy should value trained orthopedic experts, whether they have been called to testify on behalf of plaintiff or defense. If experts make mistakes (and it is easy to make mistakes doing this work), the Academy should support the expert in his efforts to improve, because a good expert is too valuable to the orthopedic profession to just censure him and thereby destroy his future usefulness as an expert. Expert witness work requires a separate skill set than the skill set that makes us good practitioners and surgeons. Many physicians don’t have the stomach for it. We as a professional society should value and nurture the physicians who are willing to take on this work.

With respect to whether experts testify for plaintiff or defense, I do not believe that it really makes any difference. Any good orthopedic expert witness should be able to work for plaintiff or defense on any given case (unless he simply doesn’t agree with a plaintiff’s case and turns it down.) The basic science of a case should be the same whether one is working from the plaintiff or defense side of the case. This is the reason why my corporate motto is “Bringing Science to the Courtroom.” In any case I do with a plaintiffs’ attorney, I always tell them the defense side of the case. Do I offer the defense side of the case at deposition or trial without being asked specific questions that bring it out? No—that would be unethical, and it would be unresponsive testimony, which is generally not allowed. It often pains me when I do plaintiffs’ cases to see the defense experts really botch the case—I often wish I could tell them what they need to say to counter me, but of course I am not allowed to. This adversarial system, with experts on each side, is what we are stuck with under the current law of the land, and therefore we will be forced as experts to work with one side or the other, defense or plaintiff, until the day comes when there is meaningful tort reform and we can stand in front of judge and jury and just tell the whole truth about the science of the case and let them decide. We are not living in such a utopia yet and maybe never will be. For now, experts must work for one side or the other and tell the best version of the truth for the side that hired them, within the confines of what they let you say under oath.

It is tempting for the medical societies to use expert witness ethics standards as a way of choking off the supply of qualified expert witnesses to plaintiffs. Many of the intimidation tactics used by medical societies against plaintiffs’ experts seem to be motivated by a pie-in-the-sky wish that if experts are not willing take on the risk of professional censure, the supply of experts will dry up and lawsuits will magically go away. There are some undesirable consequences of that approach. Firstly, if board certified experts are not available from those medical societies, it encourages plaintiffs’ attorneys to turn to less qualified experts who come from outside the societies. Secondly, it encourages plaintiffs’ attorneys to go outside a given specialty to find experts. Thus, since I am a spine fellowship trained orthopedist, I am frequently called upon to review cases against neurosurgeons, because the neurosurgical academy has effectively restricted the supply of willing neurosurgical experts, or at least made the few remaining available experts prohibitively expensive. However, lawsuits do not magically “go away” due to the difficulty of finding experts. I will attest to the fact that, in the only suit I ever settled where I was a defendant, an orthopedic surgeon was never designated against me, presumably because one could not be found—instead, I was attacked by a vascular surgeon and an infectious disease consultant. Therefore, it only makes sense that the AAOS should desire to ensure a ready supply of experts who are trained and qualified to testify for plaintiff and defense in medical tort cases. That will ensure that only good science is presented in the courtroom, that cases are decided fairly on their merits, and that board-certified orthopedic surgeons will be weighing in on orthopedic cases.

There is no question that the current adversarial system, involving prolonged and expensive discovery, pitting experts for defense against experts for the plaintiff, is a cumbersome process that does not ensure any kind of justice. The current system takes a terrible toll on physicians and on plaintiffs. Many cases where physicians really harmed patients never result in lawsuits, even if they would have been meritorious lawsuits. Many cases with merit that do go to court result in defense verdicts, despite the merits. Conversely, many physicians needlessly settle out of court, sometimes as a cost of doing business, sometimes because they are coerced by insurance companies or other parties. The entire messy process ends up being more a random lottery than any fair and equitable meting out ofreparations for actual damages. Therefore, physicians should continue to advocate for meaningful tort reform. But, we should be wary of trying to achieve “back door tort reform” via a faulty expert witness ethics program. Tort reform should happen by changing the law, not by distorting the law by establishing poorly worded ethics standards for plaintiff’s experts, and not by restricting the availability of experts by scaring physicians away from participating in the process over fear of professional censure.

 

Critique of the “AAOS Standards of Professionalism: Orthopaedic Expert Opinion and Testimony” 

So what are the flaws in the 13 Mandatory Standards, and how can the standards be improved? Let us take each one in order.

  1. An orthopaedic surgeon shall not knowingly provide oral or written medical testimony or expert medical opinions that are false.

This statement seems obvious on the surface, but this is actually a difficult standard. I have attempted to analyze expert depositions, both for plaintiff and defense, to determine True or False on statements of fact. This is much more difficult than it might seem. Not very many medical facts are absolutely true or absolutely false. We know this from reading Clinical Practice Guidelines. There are many levels of evidence, and statements of medical truth can be graded as weakly supported, moderately supported, or strongly supported by the evidence. Sometimes, medical “facts” are only supported by a consensus of experts and there is a paucity of good data. It is a fair statement that there are very few medical truths that are incontrovertible. Another issue is that experts are not called on under the law to state whether facts are true or false. Experts are called on to state facts within a reasonable degree of medical probability, which means that something is at least 51% true, or “more likely than not.”

What Mandatory Standard #1 would better say is: “An orthopaedic surgeon shall not knowingly provide oral or written medical testimony or expert medical opinions that cannot be supported by the pertinent medical literature or research.”

 

2. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall provide these statements in a fair and impartial manner.

There is no reason to quibble with this Mandatory Standard, but it could be worded better. Providing statements in a fair and impartial manner is the sort of thing that the ethics program should condone. This is what I am trying to achieve when I provide attorneys with both sides of the case up-front. Another way the standard could be worded is to recommend that expert witnesses not try to be advocates—advocacy is the role of the attorney. I have had attorneys accuse me during depositions on the record of trying to be an advocate, mostly just to try to get under my skin, but good experts will resist that mis-characterization of what they are doing. Orthopedic experts should remind lawyers that they do not have “a dog in the fight.” The expert is there to bring science to the courtroom and a certain familiarity with reviewing and gleaning meaningful information from medical charts and imaging studies. It may seem contradictory that an expert should not be an advocate even though he/she is working from one side or the other in the case. But, while an expert should believe in the merits of the case for the side he/she is working for (or refrain from taking the case), that does not mean he/she is an advocate for one side or the other. The expert is only an advocate for the medical/scientific truth of the case. If an expert takes on a defense case, for instance, he/she should refrain from shading the facts or outright lying to support the defendant—he/she should be careful not to be an advocate for the defendant. That is not to say that an expert should not do as good a job as possible for the side that hired him/her, but the expert should remember that there is a line that should not be crossed, no matter how passionately the expert believes in the case that he/she chose to take on.   

Mandatory Standard #2 would better be stated as: “An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall not be an advocate for one side or the other in a case but should retain a professional detachment with respect to the outcome.”

 

3. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall have knowledge and experience regarding the standard of care and shall evaluate the medical condition and care in light of generally accepted practice standards at the time, place and in the context of the care delivered.

This Mandatory Standard is legally problematic and needs to be fixed.

The problem is that, whether we as surgeons like it or not, the law does not equate “generally accepted practice standards” with Standard of Care. This is a complex issue, but let me work through it here.

First, we need to establish a definition for Standard of Care. Experts have to know such a definition, because experts are called on to establish Standard of Care as it pertains to the given circumstances of a case. The law generally holds that Standard of Care is what the expert says it is, and establishing Standard of Care is one of the main reasons why we have expert testimony. There are variations in wording, but Standard of Care is usually defined as “what any reasonably prudent practitioner would do given the same or similar circumstances” and sometimes a phrase is added to the effect of “practicing the usual care, skill, and diligence of the profession.” The key concept is “reasonable prudence.” Thankfully for doctors, modern courts have clarified that the Standard of Care is not a standard of perfection—it is a “reasonably prudent” standard. Another thing that is helpful for doctors is that the law usually only requires “minimal competence.” The law does not expect one to practice perfect medicine; the law does not even expect one to practice average medicine; under the law, one just has to practice minimally competent medicine. If care were expected to be average, then 50% of care would be malpractice, and the law does not set such a ridiculous standard. A Mandatory Standard that talks about so-called “generally accepted practice standards” is missing the mark on what experts really are called on to define—namely, Standard of Care.

The other problem with the notion that “generally accepted practice standards” has anything to do with Standard of Care is that such a principle defies over a century of legal precedent. The courts have long held (going back to the T.J. Hooper case in 1932) that “reasonable” practice (remember the definition of Standard of Care) is not the same thing as “usual” or “customary” practice. This was reinforced by the classic case of Helling v. Carey (1974) where a physician was found liable by violating the standard of reasonable prudence even though his performance was within generally accepted practice. A quote from Justice Oliver Wendell Holmes in 1903 sums up the legal argument that differentiates Standard of Care from “generally accepted practice standards,” as follows: “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” This is a difficult concept for physicians to grasp, and when you explain it to them, physicians often rail against this concept. It is the key legal concept that makes most of the medical societies’ expert witness ethics standards so flawed, and it needs to be addressed by the AAOS in their standards.

The concept of Standard of Care argues by its very definition against the notion that there are constant, immutable “generally accepted practice standards.” By its definition, Standard of Care is highly dependent on the circumstances of a given case. It is the expert’s duty to determine a Standard of Care given the unique facts of a given case and then determine if there were deviations from standard of care that led to damages. It is not uncommon for experts on one side or the other to disagree with each other about the pertaining Standard of Care.   There is no manual of “generally accepted practice standards” that experts from both sides can go to in order to determine Standard of Care. And even if there were, the law says that reasonably prudent practice may be different than generally accepted practice, allowing for the unique circumstances of a given case.

The AAOS cannot hope to achieve “back door tort reform” by altering over a century of American legal precedent on this issue by impeaching experts for not substituting the principle of “generally accepted practice standards” for the concept of Standard of Care. We would need to do major tort reform through a legislative process that erases over a century of legal precedent in order to make this substitution.

My suggested revision to Mandatory Standard #3 is: “An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall have the knowledge and experience sufficient to determine the standard of care as it pertains to the particular set of circumstances in the case and shall have the backing of pertinent medical literature to support his determination of the standard of care.”

 

4. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall neither condemn performance that falls within generally accepted practice standards nor endorse or condone performance that falls outside those standards.

Again, this mandatory standard garbles the law. The law does not recognize an entity known as “generally accepted practice standards” as being equated with Standard of Care.  Instead, the expert is called upon to develop a Standard of Care as it pertains to the particular fact set of the case in question. The Standard of Care can only be determined as it pertains to the “same or similar circumstances.” The notion that there are generally accepted practice standards that are somehow immutable regardless of the circumstances has nothing to do with determining Standard of Care. Of course, the expert needs to have a sound basis for his determination of Standard of Care. Then after having made that determination, it only makes intuitive sense that the expert would not condemn performance that falls within that Standard of Care. In most cases, the expert is called upon to make a list of decisions: first, to determine the pertaining Standard of Care; second, to determine if there have been departures from the Standard of Care; and third, to determine if the departures led to any damages; and lastly, to outline those damages. Sometimes an expert’s testimony is limited to one or more aspects of that list, but most often the expert is called upon to look at that entire list. Mandatory Standard #4 seems to be confused about this entire process, because an expert actually might properly condone performance that falls outside the Standard of Care, at least to the extent of not condemning it, if the deviation from the Standard of Care did not lead to any damages. In actual practice as a plaintiffs’ expert, one frequently gives a defendant surgeon a pass on any number of deviations from Standard of Care that did not harm the plaintiff patient. Also, since the law only requires “minimal competence,” an expert might condone performance by a physician who did not even perform up to some hypothetical average generally accepted standard.

My suggested revision to Mandatory Standard #4 is that it simply be deleted. The standard is completely subsumed under my suggested revision to Mandatory Standard #3.

 

5. An orthopaedic surgeon who provides oral or written testimony or expert medical opinions shall be prepared to explain the basis of his or her statements. If these statements vary from generally accepted practice standards, he or she shall indicate how and why they vary and whether they are supported by personal experience, specific clinical and/or scientific evidence.

In general, Mandatory Standard #5 is appropriate. Experts should give the basis for their statements. However, it would be preferable if the Mandatory Standards got away from this error of equating “generally accepted practice standards” with Standard of Care, as it is legally confusing and incorrect. Again, Standard of Care is different from generally accepted practice, and it has more to do with reasonably prudent practice than with usual or customary practice, and it is determined by the particular circumstances of the case at hand. Perhaps generally accepted practice refers to exercising the “usual care, skill, and diligence of the profession.” If that is what it means, we should say that. The phrase “generally accepted practice standards” is confusing because it garbles the meaning of Standard of Care.

My suggested revision of Mandatory Standard #5 is that it simply be deleted. The entire concept is covered under my suggested revision to Mandatory Standard #3.

 

6. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall seek and review all pertinent medical records and applicable legal documents, including relevant prior depositions, before rendering any statement or opinion on the medical or surgical management of the patient.

Mandatory Standard #6 has an admirable goal, but it has been a big problem, and it is not specific enough to meaningfully guide experts’ behavior. Many of the experts who have been censured under the Academy’s ethics program have been found in violation of Mandatory Standard #6 because there has been confusion over what information they had to have at various stages in the progress of a case, and because there might be differences of opinion over what is “pertinent” and “relevant” with respect to prior records and depositions. The Graboff case, which turned out to be a debacle and an embarrassment to the AAOS, was set in motion by trying to punish a plaintiffs’ expert for a violation of Mandatory Standard #6. In the Graboff case, a draft of a report to an attorney was used by the attorney, unbeknownst to the expert physician (Graboff), to obtain a settlement; an ethics grievance was filed with the AAOS against Graboff, and a judgement was rendered against him by the AAOS, on the basis that the draft report was rendered before Graboff had all of the pertinent records in the case. Graboff filed suit against the law firm that had hired him as an expert and against the AAOS. Graboff’s allegation against the AAOS was that a press release on the case had painted him in a “false light” and damaged his ability to practice as an expert witness. At final appeal, the judgement was upheld against the AAOS for painting Graboff in a false light, and the appeals judge took the extra step of declaring that the AAOS was guilty of the defamation of Graboff. The court cast a very skeptical eye on the medical societies’ use of expert witness ethics guidelines to intimidate experts from within their ranks. The medical societies have always maintained that they could do what they want with their membership and that membership is voluntary. However, in the Graboff case, the court recognized that organizations like the AAOS exert tremendous clout over the entire profession, so membership in the AAOS, while voluntary, may be very close to essential in order to achieve respect and career advancement in the orthopedic surgery profession. The long and the short of it is: we absolutely need to fix Mandatory Standard #6 in order to avoid future cases like the Graboff case.

In actual practice, it is often necessary to screen a case with limited records early in a case. Sometimes it is simply not possible to have everything in hand before an expert writes a Certificate of Merit, for instance. In some states, like Florida, a “pre-suit” certificate is required from an expert just to say that there is enough information to suggest that discovery needs to start. By signing such a certificate, the expert is not saying that any final decisions have been made about a case—the expert is just attesting to the fact that the case merits going into discovery. Plaintiffs have a right to sue, even if they show up at a lawyer’s office a week before their statute of limitations expires. Orthopedic experts should always remind attorneys that they have the right to alter, amend, or even abandon their opinions if further information comes to light that would cause them to do so. But there are lots of situations that may require an expert to give at least some early opinion in a case to allow a case that appears to have merit to go forward.

Mandatory Standard #6 needs to be revised to bring it into line with how cases actually evolve. Experts should not be impeached for signing a Certificate of Merit or authorizing a pre-suit affidavit. If the Academy impeaches experts for those things, it will look like the professional society is stonewalling to keep plaintiffs from exercising their right to sue that is guaranteed under the law, and this is not a good impression to make in the community. I strongly believe that the Academy should change Mandatory Standard #6 to specifically state that experts must have all pertinent records and relevant prior depositions before giving deposition or court testimony, not “before rendering any statement or opinion.” I also believe that the Academy should allow experts a certain latitude in determining what is pertinent or relevant for review. I have been in cases, for instance, where hundreds and hundreds of pages of depositions were taken from nurses and ancillary medical personnel that contributed nothing to what was already known from the medical record. For every expert in the case to have to read those relatively non-contributory documents adds thousands and thousands of dollars to the expert costs of a case, mostly unnecessarily.

My suggested revision to Mandatory Standard #6 is: “An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall seek and review all pertinent medical records and applicable legal documents, including relevant prior depositions, before rendering on-the-record deposition or court testimony, or before writing an expert report that will be considered in the final adjudication of a case.”

 

7. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall provide statements only about subject matters in which he or she has relevant clinical experience and specific orthopaedic knowledge in the areas of medicine that are the subject of the proceeding.

Mandatory Standard #7 is well-intentioned. However, the Academy should give broad latitude to experts (and to courts) in determining who is or is not an expert. Two standards are common in American courts regarding who is an expert and what constitutes admissible expert testimony: the Frye standard and the Daubert standard. If the law allows an expert to be admitted as an expert, and the expert testimony is deemed admissible by the given court, then I firmly believe that the Academy should respect that and not try to inject its own litmus test on which Fellows of the Academy are eligible to testify on which cases. Mandatory Standard #7 has the effect of choking off the availability of Board Certified Fellows of the Academy to plaintiffs’ attorneys. It also has the effect of increasing the costs of litigation, because the expense of finding and paying the rare super-sub-specialist in a given case who is willing to testify is onerous to the plaintiff. The Academy should not attempt to micro-manage which experts can testify on which cases if that has the effect of choking off the availability of qualified and trained experts. We as a professional society should desire that Board Certified orthopedic surgeons who are Fellows of the Academy be testifying on orthopedic cases in general. We should train our experts to self-identify the areas in which their knowledge and expertise is deficient. Let the courts qualify and disqualify experts. My suggestion is that Mandatory Standard #7 be deleted.

8. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall have a current, valid, and unrestricted license to practice medicine in one or more U.S. states or territories.

Do we need Mandatory Standard #8? If an expert does not have a license to practice medicine, he would not likely be a Fellow of the AAOS and subject to the expert witness ethics program. And he would most likely be disqualified as an expert by most courts.

9. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall maintain a current certificate from the American Board of Orthopaedic Surgery (ABOS), the American Osteopathic Board of Orthopaedic Surgery (AOBOS), or the certifying body, if any, in the country in which the orthopaedic surgeon took his or her training.

Again, do we need Mandatory Standard #9? ABOS certification is a prerequisite to fellowship in the Academy, and only Fellows of the Academy can be impeached for violating the Mandatory Standards.

10. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall be engaged in the active practice of orthopaedic surgery or demonstrate enough familiarity with present practices to warrant designation as an expert on the subject matter of the inquiry.

There is no problem with Mandatory Standard #10. Expert witnesses should be actively engaged in the practice of the specialty, with a few narrow exceptions, such as recent retirement or disability that has allowed them to remain “current.”

 

  1. An orthopaedic surgeon who provides oral or written testimony or expert medical opinions shall accurately represent his or her credentials, qualifications, experience or background.

There is no problem with Mandatory Standard #11.

 

  1. An orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall not agree to or accept a fee that is contingent upon the outcome of the matter.

Mandatory Standard #12 is an admirable standard. It is a corollary to my previous statement that experts should not be advocates. We should maintain a professional detachment from the outcome of the matter.

 

13. Compensation for an orthopaedic surgeon who provides oral or written medical testimony or expert medical opinions shall be reasonable and commensurate with expertise and the time and effort necessary to address the issue raised.

Mandatory Standard #13 is an admirable standard.

 

In summary, I am concerned that the AAOS undervalues expert witnesses, particularly plaintiffs’ experts who do more to prevent lawsuits than is generally realized. I believe that the AAOS should embrace the concept of science in the courtroom. I think we should turn away from the model of punishing bad experts and turn to a model of improving the training for experts so that Fellows of the AAOS will be the most dominant and trusted experts in the medico-legal arena with respect to musculoskeletal medicine and surgery issues.

Insofar as we as a professional society must censure experts who testify inappropriately or fraudulently, I believe we should make an effort to police defense experts as well as plaintiffs’ experts. I have personally witnessed several examples of defense expert malfeasance, but I have never seen anyone punished by the Academy for inappropriate or fraudulent defense testimony. I am not certain that there is even a mechanism for filing a grievance against a defense expert.

Finally, I reiterate my belief that the 13 Mandatory Standards should be constructively revised. As they currently stand, it is difficult for trained experts to work completely within the standards, because the standards are at odds with how this work is actually conducted, and in several places (as I have demonstrated) the standards are not consistent with the law and over a century of legal precedent.