The AANS Professional Conduct Committee is currently averaging two complaint hearings per year. The complaints mostly involve expert witness testimony, but have included allegations of unethical clinical practices and defamation of one member by another.
In each case, initial complaints are routed to the AANS legal counsel’s office, which handles the exchange of information to the point of initial committee review. The AANS Professional Conduct Committee, which consists of members appointed by the President of the AANS, then decides whether a prima facie case has been made. If so, a hearing is scheduled.
If not, the parties are informed of the preliminary decision. The complainant may still demand a hearing, but if the committee’s decision is substantially unchanged, the complainant must bear the cost of the hearing, which usually consists of court reporter fees and legal counsel fees and expenses. If the complainant does not demand a hearing, the initial conclusion of the committee stands and is sent to the AANS Board of Directors with the recommendation that the complainant be dismissed.
When a hearing does take place, legal counsel may represent either party. (One or more attorneys represent the parties in approximately 50 percent of the hearings.) The complainant and respondent present their respective positions and may be questioned by the committee members. The hearing is transcribed by a court reporter, and the committee files a written report with recommendations to the AANS Board.
Recent Actions of the Committee
In recent hearings, the committee’s recommendations have varied from dismissal of the complaint to letters of censure, six-month membership suspensions, or expulsion. A member for whom some sanction has been recommended may issue a written statement or appear personally before the Board of Directors, where a two-thirds affirmative vote by the Board is required for suspension or expulsion. A sanctioned member may then appeal the action of the Board to the general membership at the Annual Business Meeting of the AANS.
The most frequent causes for sanction over the last several years have involved legal testimony that: 1) showed inadequate knowledge or research into the subject matter under question; 2) failed to recognize diagnostic or treatment methods that differ from what the witness advocates, but which are within the generally accepted standard of care; and 3) consisted of patient advocacy for the hiring attorney.
AANS policy supports impartial testimony by members whether the requiring party is a plaintiff or a defendant. Impartial testimony means representing the accepted range of neurosurgical thought and practice and giving differing viewpoints that are within the spectrum of accepted neurosurgical care.
Resources
The AANS policy on giving legal testimony is in the AANS Code of Ethics, Section V, Item B; the Expert Witness Guidelines, 16A-1 through 4, and the Position Statement on Testimony in Professional Liability Cases, and can be found at www.neuro surgery.org.
W. Ben Blackett, MD, JD, is a neurosurgeon in private practice in Tacoma, Washington, a 32-year member of the AANS and Chair of the AANS Professional Conduct Committee.
AANS Member Expelled for Unprofessional Conduct
On November 19, 1999, the AANS Board of Directors approved the recommendation of the Professional Conduct Committee that an Indiana neurosurgeon be expelled from the AANS due to unprofessional conduct while giving testimony in a medical malpractice case.
According to the committee, the patient in the underlying litigation had paralysis and bowel and bladder dysfunction following removal of an intramedullary spinal cord tumor. The plaintiff’s expert at trial admitted he had not performed any intramedullary spinal cord tumor surgeries during the previous fivve years, and that he had never personally operated on a spinal cord intramedullary tumor using SSEPs, although he criticized the defendant surgeon for not having used SSEPs. It also appears that the only published material the plaintiff’s expert reviewed prior to testifying was researched and furnished to him by the plaintiff’s attorney.
Under the AANS’Code of Ethics,Expert Witness Guidelinesand thePosition Statement on Testimony in Professional Liability Cases, subject matter expertise is required of an AANS member giving legal testimony. The committee concluded the member in question violated those standards by testifying with insufficient expertise in this area.
In addition, the member confirmed that he has testified as an advocate for the positions he espouses and does not believe it is appropriate for him to provide jurors with the broad spectrum of neurosurgical thought on the issues presented. The AANS’ Position Statement on Testimony in Professional Liability Cases and Expert Witness Guidelines specifically states that a neurosurgeon should not testify as an advocate and should point out differing viewpoints, if they exist. Since the member’s testimony was clearly in violation of those Guidelines, he expressed an intent to continue his practices, and had previously been suspended from the AANS for similar testimony in another case, the Professional Conduct Committee recommended, and the Board agreed, that the member should be expelled.
W. Ben Blackett, MD, JD, is a neurosurgeon in private practice in Tacoma, Washington, a 32-year member of the AANS and Chair of the AANS Professional Conduct Committee.