Professing Professional Conduct: AANS Raises the Bar for Expert Testimony (cover story, Spring 2002), which describes the development and current status of the AANS professional conduct program, raised some interesting questions. Those questions, and their answers, are as follows:
Q The article stated that “all members of the Professional Conduct Committee and many members of the AANS’ Board of Directors have served as plaintiffs’ experts in the past in appropriate cases.” Appropriate cases? How is that decided? It would appear that the fox is in the hen house; no responsible neurosurgeon should be testifying as a plaintiff’s expert against another neurosurgeon. How can the AANS have a policy favoring neither the plaintiffs nor defendants?
A This question, perhaps reflecting the potency of the professional liability crisis in some states, suggests that any AANS member who testifies as a plaintiff’s expert is in some fashion disloyal to the profession. The logical extension of this position would be that the AANS should adopt a policy making it unethical to testify as a plaintiff’s expert against a fellow neurosurgeon.
Both the American Medical Association and the AANS have adopted resolutions recognizing that, since our court system requires the presentation of expert testimony in professional liability cases, physicians have an obligation to make themselves available to testify in matters pertaining to medical practice. Those resolutions are not simply noble platitudes; they reflect the law. No one will deny that occasionally patients are injured as the result of surgical negligence (although certainly not as often as the plaintiffs’ bar would assert). In those rare cases of negligence, it is “appropriate” for a physician to step forward and so advise the court. However, the resolutions of both the AMA and AANS go on to state that, when doing so, physicians have an absolute ethical obligation to testify competently and impartially, and that, if they fail to do so, they should be subject to disciplinary procedures.
Our courts will not tolerate any system or set of rules that is designed to prevent or discourage physicians from testifying as experts for injured patients. Any such system or set of rules would be viewed by the courts as constituting a conspiracy by physicians to protect themselves collectively, to the detriment of patients who may be injured by physicians. In the past, several medical societies adopted rules declaring it to be unethical for a member to testify against another member in a medical malpractice suit, and all of those rules were thrown out by the courts as being illegal.The AANS professional conduct program goes beyond AMA mandates, and is the only active program in organized medicine which regularly disciplines physicians for testifying unprofessionally in medical malpractice cases. The majority of physicians disciplined through the AANS program are individuals who testified inappropriately as plaintiffs’ experts. If, as suggested in the above question, the AANS tried to prohibit testimony of a neurosurgeon as a plaintiff’s expert against another neurosurgeon, that not only would be illegal, but almost certainly would result in the elimination of the professional conduct program.
Q Is the AANS professional conduct program designed to deal only with cases in which neurosurgeons violate the Expert Witness Guidelines while testifying as experts in litigation?
A No. The program is designed to deal with complaints of unprofessional conduct of any nature brought by one member of the AANS against another member. These can include cases of false advertising, unscrupulous business dealings, substance abuse, failure to retain qualifications necessary to maintain AANS membership, or any other instances that might constitute unprofessional conduct. The complaining member has the responsibility of assembling the evidencce necessary to support the charges and presenting it to the Professional Conduct Committee.
Q How does one initiate a charge of unprofessional conduct?
A The AANS Bylaws provide in Article II that a charge of unprofessional conduct should be raised by identifying the neurosurgeon being charged and the general nature of the allegations in a letter sent to the Secretary of the AANS at the headquarters office. All such letters are then forwarded to the General Counsel. The General Counsel is responsible for advising the respondent of the charges being brought, advising both parties of the procedural guidelines to be followed, and forwarding supporting documentation of both sides to the Professional Conduct Committee. After reviewing all documentation, the committee will determine whether a prima facie case of unprofessional conduct has been laid out, warranting a hearing. If the committee believes that a hearing is called for, one will be scheduled in conjunction with the next annual meeting of either the AANS or CNS.
If the Professional Conduct Committee concludes, after reviewing filings of both sides, that a prima facie case of unprofessional conduct has not been established and that the charges should be dismissed, it will so advise both parties. At that point the complainant may still insist that a hearing be held, in which case one will be scheduled. However, if the ultimate result of that hearing is substantially the same as the committee’s initial conclusion, the complainant will be responsible for all the actual costs incurred by the AANS in conducting that hearing. The purpose of this provision is to minimize the likelihood of holding hearings on charges that are essentially baseless or which, even if proven, would not warrant sanctioning a respondent.
Q Can a complaint of unprofessional conduct be filed against a neurosurgeon based on his or her testimony in a case that is still in litigation, or on appeal?
A No. The committee will not hear any complaint based on testimony in ongoing litigation, including cases on appeal; considerable law suggests that hearing a complaint based on ongoing litigation could be considered to be an improper intimidation of trial witnesses, which would be severely frowned upon by the courts. Only after a case has been completed, either through settlement or through trial and exhaustion of all post-trial procedures, should a complaint based on testimony given in that case be filed with the AANS Professional Conduct Committee. A complaint based on ongoing litigation will be returned to the complainant as premature.
Q Is the AANS professional conduct program considered a statutory peer review program, thereby prohibiting subsequent discovery in civil litigation of the Professional Conduct Committee’s records or the details of the charges proven?A No. The AANS professional conduct program is not a statutory peer review program, and the committee’s records and the details of any charges proven are subject to discovery by subpoena in civil litigation.
Q Are disciplinary actions taken by the AANS pursuant to its professional conduct program reported to the National Practitioner Databank https://www.npdb-hipdb.com/npdb.html?
A In accordance with the databank’s rules and regulations, expulsions and suspensions from AANS membership are to be reported; reports of censures are not. In the past, one neurosurgeon expelled from the AANS for giving unprofessional testimony as a plaintiff’s expert objected to the filing of that report with the databank. After requesting legal briefs from both sides, the Secretary of Health and Human Services concluded that it was not only appropriate, but required, for professional associations such as the AANS to report suspensions and expulssions of members based on unprofessional testimony as expert witnesses in litigation.
Russell M. Pelton, a partner in the Chicago law firm of Ross & Hardies, is the AANS general counsel. ]]>
