Sunday, September 14, 2008

AAOS disciplines expert witnesses

Okay. Let's hope that the AAOS is consistent in its concern about orthopedic surgeons following "standards of professionalism."

The AAOS recently suspended two physicians for testifying in depositions for patient plaintiffs (and against defendant surgeons).

Chris Dangles, M.D. (Carle Clinic Association in Urbana, Illinois) testified under oath in a deposition as follows:

(1) Dr. Chris Dangles testified under oath that he did not know why the patient wanted the ankle surgery,

(2) Dr. Chris Dangles testified under oath that he did not provide non-surgical conservative alternatives to the patient,

(3) Dr. Chris Dangles testified under oath that he never watched the patient walk,

(4) Dr. Chris Dangles testified under oath that he never asked the patient about the mechanics of the post surgical falls, and

(5) Dr. Chris Dangles testified under oath that he suspected that the patient fell down post ankle surgery because she had a alcohol problem and was taking both pain medication and anti-depressant medications. Those facts notwithstanding, Dr. Chris Dangles testifies that he was still manipulated by the patient to perform a third ankle/orthopedic surgery (for unknown reasons and all within a nine-month period) on the patient.

Public records indicate that other patients have sued Dr. Chris Dangles for medical malpractice.

But in the case discussed above (and in this blog), the patient's current treating orthopedic surgeon refused to testify as an expert witness against Dr. Chris Dangles undoubtedly because he was afraid of being disciplined by the AAOS or sued by Dr. Dangles.

The Illinois Department of Financial and Professional Regulation (IDFPR) told the patient that Dr. Chris Dangles could not be disciplined because a statute of limitations of four years had passed. The IDFPR acknowledges that Dr. Chris Dangles' deposition testimony was "of concern." Moreover, the injured patient does not enjoy a SOL on the injuries. She faces additional orthopedic surgery because of Dr. Chris Dangles' treatment of her.

Bottom line: if the AAOS is going to intimidate expert witnesses into not testifying against fellow orthopedic surgeons then the AAOS should be consistent and discipline the orthopedic surgeons who testify about their own wrongdoing.

So, let's see who the AAOS is disciplining:

Two fellows suspended for violations of Standards of Professionalism

On June 14, 2008, the AAOS Board of Directors met in closed session to consider two grievances under the AAOS Professional Compliance Program. Based on the information presented and the recommendations of the Committee on Professionalism (COP) and the Judiciary Committee, the Board issued suspensions to two fellows for violations of Mandatory Standards under the Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony. Ronald P. Byank, MD, received a 1-year suspension and W. Thomas Jackson, MD, received a 3-month suspension.

Ronald P. Byank, MD
Baltimore, Md.
1-Year Suspension

In January 2007, a grievance alleging violations of the SOPs on Orthopaedic Expert Witness Testimony was filed against Dr. Byank. The grievance was based on a case that arose from a total knee arthroplasty (TKA) on a 50-year-old man, who had undergone two prior right knee surgeries (an open menisectomy and a proximal tibial osteotomy) many years prior.

The complex TKA had no excessive bleeding during the procedure, even after the tourniquet was deflated before closing. At the conclusion of the 2 hour, 10 minute surgery, while dressing the leg with the patient still under anesthesia, the orthopaedic surgeon noted that the patient had absent pulses. He contacted one of the vascular surgeons on staff. That surgeon examined the patient and then, due to personal reasons, advised the orthopaedic surgeon to call another vascular surgeon who was on call.

The on-call vascular surgeon performed a vascular saphenous graft to the transected popliteal artery. This surgery started about 90 minutes following the conclusion of the TKA. Unfortunately, adequate pulses were not restored, and the decision was made to transfer the patient to the nearest tertiary referral site. Despite additional attempts at vascular reconstruction that evening, perfusion was not successfully reestablished. The patient eventually underwent an above-knee amputation of the right leg.

The grievance was based on three reports that Dr. Byank authored as the plaintiff’s expert witness and on Dr. Byank’s deposition. The grievance alleged that Dr. Byank gave opinions as a medical expert on the management of a vascular complication, an area in which Dr. Byank is not an expert. Dr. Byank claimed that he was given wrong information prior to his first two reports and believed that the vascular surgeon who did the repair was a general surgeon who sometimes performed vascular surgery. In fact, a vascular surgeon performed the vascular surgical repair. Dr. Byank’s opinions changed after the second report, and he was not critical of the vascular surgical repair in his third report and at deposition.

Dr. Byank maintained that all the information in his reports and in his deposition regarding tourniquet time, vascular injuries, and the need to obtain vascular surgery consultation was based on orthopaedic surgery literature, not vascular surgery literature.

In October 2007, the COP conducted a hearing, at which Dr. Byank appeared with counsel. Dr. Byank appealed the COP’s recommendations for professional compliance action. In March 2008, the AAOS Judiciary Committee conducted an appeal hearing of this grievance.

On June 14, 2008, the AAOS Board of Directors considered this matter and voted to suspend Dr. Byank for 1 year for violations of the Mandatory Standards 3 and 8:

3. An orthopaedic expert witness shall evaluate the medical condition and care provided in light of generally accepted standards at the time, place, and in the context of care delivered.

8. An orthopaedic expert witness shall provide evidence or testify only in matters in which he or she has relevant clinical experience and knowledge in the areas of medicine that are the subject of the proceeding.

W. Thomas Jackson, MD
Mooresville, N.C.
3-Month Suspension

In December 2006, a grievance alleging violations of the SOPs on Orthopaedic Expert Witness Testimony was filed against W. Thomas Jackson, MD, based on a case that arose following arthroscopic knee surgery.

One week postsurgery, a second treating physician aspirated the knee and a culture grew penicillin-resistant Staphylococcus Aureus. The patient was hospitalized, had an arthroscopic wash out of the knee, and was given intravenous antibiotics. The patient subsequently had five more surgeries, including a TKA.

The grievance was based on statements made during Dr. Jackson’s deposition and court testimony as the patient-plaintiff’s expert witness and on a graph that Dr. Jackson claimed depicted bacterial growth in the knee. The patient-plaintiff alleged that the orthopaedic surgeon should have used prophylactic antibiotics before the knee arthroscopy and kept the patient on antibiotics when he was subsequently admitted for pain control. The Court dismissed the case with prejudice after a jury trial.

During deposition, Dr. Jackson testified that he was trained before arthroscopies were introduced and that he never acquired great skill at performing them. At trial, Dr. Jackson testified that he was thoroughly familiar with the arthroscopic procedure the orthopaedic surgeon performed. At deposition, Dr. Jackson testified that a reasonably prudent orthopaedist is negligent if he does not give prophylactic antibiotics. At trial, Dr. Jackson testified that he had changed his mind and antibiotic prophylaxis was not the standard of care. Dr. Jackson admitted that he had not had a chance to review all the medical literature and become current on all of the issues. Dr. Jackson also admitted that the graph he drew on bacterial growth was inaccurate.

In October 2007, the COP conducted a hearing at which Dr. Jackson appeared. Dr. Jackson appealed the recommendations from the COP. In March 2008, the AAOS Judiciary Committee conducted an appeal hearing at which Dr. Jackson appeared. The Judiciary Committee made recommendations to the BOD that were different from the COP’s recommendations but still concluded that Dr. Jackson had violated one of the requisite standards. On June 14, 2008, the AAOS Board of Directors, after careful deliberation and discussion, voted to suspend W. Thomas Jackson, MD, for 3 months for violations of the Mandatory Standards 3, 4, 7, and 8:

3. An orthopaedic expert witness shall evaluate the medical condition and care provided in light of generally accepted standards at the time, place, and in the context of care delivered.

4. An orthopaedic expert witness shall neither condemn performance that falls within generally accepted practice standards nor endorse or condone performance that falls outside these standards.

7. An orthopaedic expert witness shall have knowledge and experience about the standard of care and the available scientific evidence for the condition in question during the relevant time, place, and in the context of medical care provided and shall respond accurately to questions about the standard of care and the available scientific evidence.

8. An orthopaedic expert witness shall provide evidence or testify only in matters in which he or she has relevant clinical experience and knowledge in the areas of medicine that are the subject of the proceeding.

Peter J. Mandell, MD, is chair of the Committee on Professionalism.

AAOS Now
http://www.aaos.org/news/aaosnow/aug08/youraaos9.asp

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