Troublesome testimony

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Having an expert offer insight can prove costly if their opinions are inappropriate and make for a troublesome testimony.

The National Practitioner Databank isn’t just a list of malpractice payments. Medical boards, hospitals, and professional societies are also required to report certain adverse actions taken against physicians. This case illustrates how inappropriate expert testimony can be cause for NPDB reporting and how courts are unlikely to second-guess a professional society’s review of an expert’s testimony. Although this opinion involves an orthopedic case, the concepts in the case apply across all specialties.

After evaluating a patient with chronic shoulder pain, an orthopedic surgeon diagnosed a chronic shoulder separation and recommended conservative treatment. The pain persisted and the patient ultimately required reconstructive shoulder surgery. The patient sued, alleging that minor earlier interventions would have obviated the need for major reconstructive surgery.

The plaintiff’s expert submitted an opinion stating that the patient had a “surgical problem” requiring early intervention and that the treating orthopedist’s conservative approach was negligent. Due in part to the expert’s testimony, the insurance company chose to settle the malpractice case.

The defendant orthopedist then filed a grievance against the plaintiff’s expert with the American Academy of Orthopedic Surgeons (AAOS), alleging that the plaintiff expert’s opinion violated several AAOS Standards of Professionalism. The expert was offered multiple opportunities to submit evidence supporting his opinions and to participate in a hearing on the matter, but refused to do so, calling the grievance “patently frivolous.”

After reviewing the defendant orthopedist’s complaint, AAOS Board of Directors unanimously determined that the plaintiff expert had misrepresented generally accepted standards of practice in orthopedics and had failed to demonstrate adequate knowledge about diagnosis and management of issues in the malpractice case. As a result, the board suspended the expert’s membership for two years. The AAOS then filed a mandatory report with the NPDB stating that the expert “did not evaluate the care within the context in which it was delivered,” did not create an opinion “in a fair and impartial manner,” demonstrated a lack of knowledge of the standard of care and violated multiple AAOS standards of professionalism.

After learning of the report, the plaintiff expert demanded that the NPDB remove the adverse report, but the NPDB refused, stating it is not permitted to review the merits of the underlying action, only whether the report is authorized and “accurately describes the reporter’s action and reasons for action.” The expert then sued the AAOS alleging that it violated his First Amendment rights and sued the Secretary of Health and Human Services, the administrator of the NPDB, to force the NPDB to remove the adverse report.

The court dismissed the AAOS from the action, noting that the plaintiff expert refused to participate in the proceedings against him on multiple occasions and stating that there was no First Amendment claim against the AAOS since the AAOS was not a government entity. With regard to the NPDB, the court held that the expert’s suspension was supported by the facts as established by the AAOS, that reporting was required under the Healthcare Quality Improvement Act  and that the NPDB verified the accuracy of the report at the expert’s request. The orthopedist expert’s lawsuit was therefore dismissed. The report against him remains in the NPDB.

Cerciello v. Sebelius, No. 13-3249 (E.D. Pa. 2016)

Take Home Points
  1. Reports to the National Practitioner Databank can occur for many reasons in addition to medical malpractice payouts. NPDB reports also occur:
    a. With healthcare-related civil or criminal convictions against a physician;
    b. When physicians are excluded from state or federal health care programs;
    c. When entities such as state medical boards, hospitals, or professional organizations take certain adverse actions against a physician.
    See 45 CFR § 60.4 et seq.
    Once criteria for making an NPDB report are met, the reports are not discretionary and entities that fail to file mandatory reports can be fined up to $25,000 per incident.
  2. Reports to the NPDB are required for many adverse actions relating to a physician’s professionalism or clinical competence. Triggering incidents do not need to involve direct patient care. In this case, the expert had obviously not treated the patient, but the court noted that the expert’s report revealed that he “did not have knowledge of the proper standard of care and thus could cause harm to a future patient.” The court opinion also cited another case in which a NPDB report was upheld after a physician was suspended for “pitching a fit” in the hospital by breaking a copy machine and a telephone, scattering papers and yelling at a nurse. Allegations of “unprofessionalism” may be vague and have little to do with a physician’s clinical abilities, but claims of unprofessionalism can be potentially devastating to one’s medical career.
  3. When professional organizations protect both their members and the public by reviewing and sanctioning inappropriate expert testimony, they are insulated from liability under the Healthcare Quality Improvement Act. Although not mentioned in this case, the HCQIA specifically states that professional review bodies and any person who participates with or assists the review bodies with the review action “shall not be liable in damages under any law of the United States or of any State with respect to the action.” 42 U.S.C. §11111(a).
  4. Refusing to participate in proceedings related to hospital privileges, medical society membership, or medical licensure makes it difficult to later allege a lack of due process or fair treatment.
  5. Most professional specialty organizations have procedures in place to review inappropriate expert testimony. For example, ACEP allows testimony for or against an ACEP member to be submitted to the Ethics Committee for review. Misleading or false testimony may result in sanctions which, as in this case, could ultimately result in a report to the NPDB.
  6. NPDB reports can be a double-edged sword. On one hand, NPDB reports can alert hospitals and insurers to allegations of inappropriate care or professional issues (including expert testimony) with medical providers. On the other hand, malpractice settlements based on financial criteria and unsupported accusations of “unprofessionalism” can trigger a NPDB report and may result in a significant adverse effect on the careers of even the most competent providers.

ABOUT THE AUTHOR

SENIOR EDITOR
Dr. Sullivan, an emergency physician and clinical assistant professor at two residency programs in Illinois, is EPM's resident legal expert. As an attorney specializing in healthcare issues, Dr. Sullivan represents physicians and has published many articles on legal aspects of medicine. He is a past president of the Illinois College of Emergency Physicians and a past chair and current member of the American College of Emergency Physicians' Medical Legal Committee.

3 Comments

  1. So refreshing to see a professional association willing to stand up for its members despite the spectre of litigation. AANS did this in the Austin case in 1996, and AAEM has also done so, both in pursuit of unethical expert witnesses. AAOS has done this on several occasions. I am proud to have helped AAOS formulate its Expert Witness policy and its Litigation Stress Support Program, both of which constitute valuable services to members. And I’m even more pleased that AAOS has again shown the courage to stand up to its convictions and pursue this case to its natural conclusion, not shying away from the hard decision to take action against a member despite the high odds that litigation would ensue. We should all be so well defended by our professional association.

    Also, it’s wonderful to see the NPDB being used, appropriately, as a shield to physicians rather than just as a sword.

  2. Matt Everett on

    Perhaps medicine could take a cue from real estate. Namely the process by which estimates are obtained. e.g. When an expert is needed, a request is submitted to the appropriate board who selects a vetted physician or submits a few vetted docs for use. This pool of docs are scrutinized to ensure that testimony doesn’t deviate significantly from accepted standards.

  3. Gerald F. O’Malley, DO, FACEP, FAAEM, FACMT, FAACT on

    The process of filing an ethics complaint against an ACEP member is very well codified (I’ve done it twice and each time my complaint resulted in public censure against the plaintiffs expert). I’m not aware of any process by which AAEM accepts complaints against members for unethical testimony. I’ve submitted numerous examples of “remarkable testimony” to the AAEM website but none have ever been posted. I wish AAEM would be more aggressive in assisting members counterpunch against unethical testimony.

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