United States: Professing Professional Conduct: AANS Raises the Bar for Expert Testimony

Intense interest from professional associations and media. A flurry of inquiries from AANS members. Nods of approval from the federal courts, the American Medical Association, and others.

The subject of this heightened activity is the American Association of Neurological Surgeons' professional conduct program, recently in the national media spotlight because of two high profile cases, Austin v. AANS and Lustgarten v. AANS. While the progress and disposition of these cases illustrate the program as a paragon of professional self-regulation, for nearly 20 years the AANS professional conduct program has accomplished much more than serving as an arbiter of professional testimony by neurosurgeons in court cases, although attention has been focused on this area more frequently than on other areas. The program on the whole serves to provide an equitable and impartial system for upholding the AANS code of ethics and resolving complaints of unprofessional conduct.

The premise of AANS' professional conduct program is the idea that membership in a professional association requires conduct which meets a high professional standard. It stands to reason that when members believe other members have acted outside of professional boundaries, they feel compelled to do something about it. They further expect their professional association to take appropriate action.

Such was the case in 1983 when Carl Hauber, the AANS executive director at the time, framed the problem: When the association fielded a member complaint, it might be ignored, particularly if there was no evidence to support the allegation; if the complainant was insistent the issue might be referred to one committee or another for an investigation. Unfortunately on some occasions those committees found that they were investigating the wrong person and that the "bad guy" was the one who had initiated the complaint. There was neither a mechanism in place to evaluate the seriousness of member complaints, nor a uniform and equitable procedure that could deal with them.

In response to these problems the professional conduct program was devised. The AANS Board of Directors made the Professional Conduct Committee, which previously had been used only sporadically, the arbiter of all member complaints. The committee's charge was to address complaints on an impartial basis, to conduct hearings where appropriate-with due process protections for all parties concerned-and to make unbiased recommendations to the board.

In 1983 Procedural Guidelines were adopted to provide the ground rules under which the committee would evaluate complaints. Under those guidelines, which remain modified but intact today, it is the complainant's responsibility to collect all relevant evidence and present it to the committee. The guidelines further provide that after the complainant's supporting material is received, copies are sent to the charged neurosurgeon who is given the opportunity to respond in whatever fashion he or she believes appropriate. Both sides' submissions are furnished to all members of the Professional Conduct Committee for review before a hearing.

Hearings normally are scheduled in conjunction with the annual meetings of the AANS or CNS to minimize schedule disruption and expense for all parties. Either side may have counsel if they wish, and the proceedings are recorded by a court reporter. Attorneys who attend are advised that they can ask clarifying questions of the other side, but extensive cross-examination is not permitted. After both sides make presentations, the committee goes into executive session to determine whether unprofessional conduct has been established and, if so, what penalty is appropriate: censure; suspension of membership; or expulsion from the AANS. The Professional Conduct Committee's report is then sent to the Board of Directors as well as to the complainant and respondent. If adverse action is being recommended, the respondent has the opportunity to make a further presentation to the board before final action is taken. Finally, any member can make a further appeal to the AANS' general membership, anonymously if they wish.

At the same time that the Professional Conduct Committee's Procedural Guidelines were adopted in 1983, the Board of Directors also adopted Expert Witness Guidelines. The guidelines specifically reflect the fact that "the AANS has adopted a position advising all neurosurgeons to testify impartially and prudently for both the defendant and plaintiff in matters brought before the courts," and that in so testifying as expert witnesses, neurosurgeons are expected to comply with certain basic principles. The guidelines are intended to ensure a standard of quality and impartiality in expert testimony provided by neurosurgeons on either side of professional liability cases. Violations of these guidelines, if supported by credible evidence, can be brought before the Professional Conduct Committee and, ultimately, the Board of Directors, for appropriate discipline.

During this period the AANS also established its library of expert witness testimony. Library transcripts are available only to AANS members or to their counsel in order to determine whether or not an opposing expert has testified consistently in previous litigation. Anyone may submit to the library transcripts of either deposition or trial testimony of neurosurgeons serving as expert witnesses in professional liability cases.

In May 1987 the Board of Directors adopted the AANS Position Statement on Testimony in Professional Liability Cases (see sidebar), which further specified the standards that should be followed in the ethical presentation of expert testimony by neurosurgeons. The Position Statement included a provision that a neurosurgeon should not accept a contingent fee as an expert witness, as well as a provision that if an expert presents an opinion different from opinions held by other neurosurgeons, then the expert has an obligation to acknowledge those differing views.

The Procedural Guidelines were refined in 1995 to permit the committee, after reviewing written submissions from both sides, to make a preliminary determination as to whether or not a case of unprofessional conduct is apparent. If so, a hearing is scheduled. If the committee believes that such a case has not been established, a report is sent to the Board of Directors recommending that the complaint be dismissed. Approximately 25 percent of the cases presented to the committee are now resolved in this fashion. However, in that situation if the complainant still insists that a full hearing be conducted, a hearing will be held, but if the final result is substantially the same as the committee's initial conclusion, the complainant will be assessed the full costs incurred by AANS. To date no complainant faced with that situation has insisted on a hearing.

The professional conduct program was further fine-tuned in 1996 with a bylaw amendment that permitted the AANS' Board of Directors to refuse to accept any resignation tendered by a member who was the subject of pending charges before the Professional Conduct Committee.

Jacobs Litigation Challenges AANS Program
Not surprisingly, the AANS' professional conduct program has drawn judicial challenges. In 1991, after charges of unprofessional conduct were brought against George Jacobs, MD, a New Jersey neurosurgeon, he filed a complaint for injunction against the AANS in Bergen County, New Jersey, attempting to block the proceedings. His complaint asserted that only a trial judge can measure the appropriateness of expert witness testimony and that it should not be permissible for a medical professional association to attempt to review and possibly criticize that testimony after the trial.

The trial court in Hackensack, New Jersey, granted the AANS' motion to dismiss the complaint, a decision that was affirmed by the New Jersey Appellate Court and the New Jersey Supreme Court. All three levels of courts in New Jersey focused on the fact that there was nothing inherently improper with AANS' procedures and that the key question was whether the plaintiff, Dr. Jacobs, would receive appropriate due process. The courts noted that there was nothing in the record of the AANS Professional Conduct Committee or its Procedural Guidelines that would indicate the contrary. Although the Jacobs decision was not widely publicized at the national level, it became fairly well-known in the neurosurgical community.

An interesting incident occurred a year or so after the conclusion of the Jacobs litigation. An attorney in Grand Rapids, Mich., called to express appreciation for the Jacobs decision. She explained that she had been defending a neurosurgeon in a medical malpractice case in which the plaintiff's expert grossly misstated the applicable standard of care and refused to acknowledge differing views, of which there evidently were many. At the conclusion of his deposition, she said she asked the plaintiff's expert if he was aware of the Jacobs v. AANS case; he was. She also asked if he was aware that a charge of unprofessional conduct could be filed with AANS, along with a transcript of his testimony. He answered in the affirmative. When she asked if he would like to change his testimony and he again answered in the affirmative, the case ended right there.

Austin Demonstrates Associations' Duty to Self-Discipline
A second court challenge to the AANS professional conduct program occurred in 1997. The Professional Conduct Committee had found that Donald C. Austin, MD, provided inappropriate and unprofessional testimony as a plaintiff's expert in a medical malpractice case, and the committee had recommended suspension of his membership for six months. Dr. Austin had testified in the underlying litigation that permanent damage to the recurrent laryngeal nerve of a patient during the course of an anterior cervical fusion procedure could only have occurred as a result of negligence on the part of the surgeon, and that "the majority of neurosurgeons" would concur with his opinion. The committee concluded that Dr. Austin was wrong in both respects. The AANS Board of Directors agreed and suspended Dr. Austin's membership in the AANS. His appeal to the general membership was unsuccessful. Dr. Austin attempted to resign during the pendency of his case before the committee, but the board refused to accept his resignation until the case was completed, in accordance with AANS bylaws. When Dr. Austin's suspension became final, his resignation was accepted.

Dr. Austin then filed a suit in U.S. District Court in Chicago alleging that he was deprived of due process, a charge he later dropped, and he also alleged that the AANS program violated public policy by discouraging physicians from testifying for plaintiffs in medical malpractice cases. He further alleged that AANS' actions had sullied his reputation and had resulted in a substantial drop in his expert witness income. The District Court granted the AANS Summary Judgment, which was affirmed on appeal by the 7th U.S. Circuit Court of Appeals. On appeal the AANS was supported by an amicus brief filed on behalf of the American Medical Association, the American College of Surgeons and the Illinois State Medical Society. In writing the affirming opinion, Chief Judge Richard Posner praised the AANS professional conduct program as a public service, saying that "this kind of professional self-regulation furthers, rather than impedes, the cause of justice." Judge Posner went on to state:

In January 2002 the U.S. Supreme Court refused to hear a further appeal by Dr. Austin's counsel. The Austin decision stands today as the definitive court opinion supporting the right, and arguably the duty, of professional associations to discipline their members who engage in unprofessional conduct while testifying as expert witnesses in litigation.

ATLA Leads Lustgarten Challenge to AANS' Program

While the Austin case was on appeal, a third suit was filed attacking the propriety of the AANS' professional conduct program. That suit was filed in April 2001 on behalf of Gary Lustgarten, MD, in the U.S. District Court for the Southern District of Georgia. Dr. Lustgarten's attorneys were all leading members of the plaintiffs' bar and, indeed, one of his attorneys of record was a senior staff lawyer for the Association of Trial Lawyers of America (ATLA). One of Dr. Lustgarten's attorneys advised our local counsel that the suit was filed because the plaintiffs' bar was not at all happy with the handling or trial court ruling in the Austin case. The sophisticated complaint filed in the Lustgarten case asserted that the AANS professional conduct program constituted a conspiracy against plaintiffs' experts.

Expecting that AANS would obtain a favorable verdict from the federal appeals court in Chicago in the Austin case-which would be binding on litigation pending in the Northern District of Illinois, but only advisory on litigation pending in the Southern District of Georgia-AANS filed a motion to have the Lustgarten case transferred to the U.S. District Court in Chicago. The basis for the motion was that AANS was headquartered in the Chicago area, along with all its relevant records and key personnel, and that the case would be more appropriately heard in Illinois. Plaintiff's counsel put up a ferocious battle to defeat the motion, but the Georgia court granted the transfer, and the plaintiff's motion for reconsideration of the transfer was denied. Shortly after the transfer order became final, the federal appeals court in Chicago entered its affirming decision in the Austin case, which gutted the arguments raised on behalf of Dr. Lustgarten. Recognizing that their position had been rendered untenable, counsel for Dr. Lustgarten wrote to the court on ATLA letterhead voluntarily dismissing Dr. Lustgarten's complaint.

While the federal appeals court decision in the Austin v. AANS case stands as the definitive judicial affirmation of professional conduct programs, it is essential to remember that the AANS professional conduct program is not aimed at punishing plaintiffs' experts. Rather, the spirit of the program is to promote the integrity of expert testimony on both sides of professional liability cases. Indeed, during the discovery in the Austin case, it became a matter of record that all of the 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.

A task force of the American Medical Association has endorsed the AANS professional conduct program,²
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and numerous other medical societies are currently studying our program and considering adopting similar ones. One prominent member of the healthcare community commented during the pendency of the Austin appeal that the AANS was "carrying the water for all of organized medicine in that litigation." These accolades further testify to the success of the AANS professional conduct program.

But the point is that expert testimony, when presented on either side in professional liability cases, should be informed, objective and medically sound. Everyone should be able to rely on that, including the courts, juries, other medical experts, and the public. The AANS professional conduct program, battle tested and affirmed in the courts, moves our adversarial court system closer to that goal.