My talk will be a little bit different. I'm going to talk about the AANS program, professional conduct program, as it pertains to what we've been talking about here, the expert witness. But what I want to say before I start is what these two gentlemen have told you is square on the money. You have to go to court and sit in a hot seat to understand it. But everything they told you is pure gold. And sometime in your life, you're going to need it. So don't forget it. Now, one of the issues is when you go to court or you get sued, there's going to be experts as we talked about. And this is a statement by the American Academy of Pediatrics. But I think it reflects the thinking of the AANS. And just read it. The interest of the public and the medical profession are best served when scientifically sound and unbiased expert opinion testimony is readily available to plaintiffs and defendants, plaintiffs and defendants in medical negligence suits. We're not just trying to take down all the plaintiffs' experts. That's not the point. We want unbiased testimony, scientifically sound, unbiased testimony. And that's what you want when you get hit with a lawsuit that you have to defend. Now, we've already talked about this, the elements that are necessary for to determine malpractice. But the key point here is that each one of these requires, well, not always injuries. Sometimes it's obvious. But sometimes it's not obvious. And requires an expert to interpret the meaning of things to a lay jury to understand the meaning of things. That's what a doctor really does, if you think about it. We interpret the meaning of things, the meaning of your symptoms. What do you face in life? People understand it. Well, the same thing is true in court. And that's what the expert does. You can find the rules. We have a code of ethics in the AANS. And then there's a subset of the code of ethics, which is the rules for expert testimony. Actually, they're called the rules for neurosurgical, medical, legal, expert opinion services. But if you go to this page on the AANS website, you can find it. Or you can just look it up on Google right there. Type it in, AANS rules. Come right up is the first thing. And here's what you find. That's all of them. They're real simple. But I'm going to go through a little bit of detail to tell you why they're important. Number one, impartial testimony. All these have to do with being unbiased. You're not for the plaintiff. You're not for the defense. You're there to educate everybody in the courtroom equally. Now, the thing about experts is they get hired. That's a bias, right? You're being paid by somebody. Well, you as an expert, if you are an expert or you hope that the expert comes, has reviewed the case, has an opinion, doesn't care which side it's for, this is the truth. If the truth happens to correspond to that side's view of reality, they'll hire him. You don't testify for the money, you testify because it's true and it happens to correspond to their side. But you're not testifying for that side and you don't want your experts testifying for one side or another. So, these are the categories an expert is judged on, impartial testimony, subject matter that the expert knows the subject and is experienced in the subject adequately to give an expert opinion, compensation that it's fair and that it's not based on the outcome of the case. If you're paid based on whether you win or lose, you're dead in the water. You're going to get punished or the person who testified against you. All right, so these are the, this is about impartial testimony. The most important thing here is something that Dr. Woens mentioned earlier. There are minority views in the way to do things. They're okay. They're valid. Not everybody has to do everything the same way. There are a lot of ways to skin a cat and they're valid. Represent the behavior of a prudent neurosurgeon. But it doesn't mean that there's only one viewpoint. Give different viewpoints. If there are different ways to do it, it's not the way you do it or you were taught to do it or your group does it, that doesn't mean it's wrong. And identify personal opinions, represent a full standard of care. And what you need to do or your expert needs to do is if there's something that's not quite right, is it clearly way out or is it on the margin? Not everything that's not quite the way you think it should be is far off the norm. And don't be evasive. Answer the questions or make sure your expert answers the questions. One of the reasons this program is so important and successful, both in the AANS and in a number of other specialty organizations, is it gives the defendant, doctor, neurosurgeon, at least a way to keep an expert accountable. Because it seems like they can come in and say anything in court without any consequence. Right or wrong. It just seems that way. This is a way to keep all of us accountable on both sides, whether it's defense or plaintiff. Sufficient knowledge, know the specific subject. These experts should know, have experience in that particular item that the case is about. And the second thing is have reviewed all the pertinent information in that case. Not just accepted a few excerpts from charts or just talked to a plaintiff's attorney or a defense attorney and said this is what we think and have looked at no studies or just read reports on studies. When you're an expert, you look at the facts of the case. And you testify according to the facts. And this is both in the affidavits that are written ahead of time. If you have made out an affidavit to keep a case going or if your expert has and hasn't done the review, then he can be sanctioned or she can be sanctioned under this program. Because that's kept the case going. Be familiar with all current standards. When you take money based on the outcome, that's called a contingency fee. That's wrong. You don't do that. Your experts must not do that. It should be reasonable and commensurate with the time and effort that's put into it. Just like any other deposition you would give in the office. Where I see or we see in the professional conduct committee most of the problems people run into, it's either the defendant who's bringing the complaint or the expert against whom the complaint is made has some erroneous assumptions about the standard of care. Now, we're taught that levels of evidence, scientific evidence, mean that class one evidence is the only really true evidence. And we have individuals come to our committee over and over again and say there was no class one evidence. Sanction that expert. Most things that we do don't have class one evidence. That doesn't mean you can't try a case. We're going to try it on whatever evidence is available. It doesn't matter if it's class one or two or three. That's scientific classification. That's not a legal standard. It does help verify that the evidence may be better. But as Rich Woens alluded to, the Supreme Court has made at least three different decisions recognizing what expert testimony can rely upon. And the Frye standard was from a decision back in 1923, what was generally accepted in the medical community. 1993, the Doebert standard recognized that there were actually scientific methods that should be applicable to evidence, that it should be reproducible. And if it's junk science, as Rich was saying, it should throw it out. This Kumho-Tyre standard applied it not just to scientific but general technical knowledge, not just scientifically provable knowledge. But let me tell you on that last bullet is very important. The absence of scientific data doesn't absolve the need for expert opinion because there's going to have to be a legal decision made. The errors that I see made commonly are experts who are excessively dogmatic and inflexible and think that the way they've seen things done is the way things have to be done. Or we do it the majority of the time this way or the majority of neurosurgeons do it this way. So this is the way. Remember, there are a lot of different ways to skin a cat. And your personal opinion is not necessarily the standard of care. We see those who oftentimes in retirement want to have some extra money and will continue to testify about things that they used to do or maybe haven't done for 30 years. That's a mistake. You need to be actively doing it if you want to be truly expert or within a reasonable distance of when you were actually doing it. Incomplete knowledge of the medical facts in the record. It's easy to review the record, but if you don't take the time, you're not going to testify correctly. And one of the mistakes that our experts make is attorneys suggest to them the way to interpret the facts, that it was or wasn't a standard of care. And they agree to it, sure. And they get paid for it. Bad idea. Bad idea. So the goals of the AANS program is we simply want accurate and appropriate legal testimony. So that's what the guidelines are for. And everybody should know about them. This creates a system of accountability. And that's what we want. So the process in brief is if you are a defendant and an expert has testified against you, the way this process happens is you make a complaint to the AANS about so-and-so expert. And you provide as much information as you can gather as to why that expert was in error. We don't become prosecutors. This is more like a civil case where there's a tort action. You have to pursue your complaint. We give it to the accused or the respondent, as we call them, and they respond. Then the committee decides is there a case? It's like a grand jury. It's a prima facie determination. Is there evidence that something is wrong or enough to have a hearing? That's a brief determination. Then the PCC hearing occurs at one or the other of the AANS or CNS meetings. And the plaintiff comes with his attorney often, the defendant and the respondent. I say the complainant and the respondent come. They get 30 minutes each to make their presentations. Then they're done. And we make a recommendation and a report to the AANS board. The board then considers that the respondent may come to the AANS board and defend himself. The chair, I will present it to the board, the recommendation, have the report, why we said such and such a penalty. And these are the penalties that might be recommended. Dismissal or dismiss but admonish the respondent that you did something wrong. It doesn't really fall into the penalty category, but don't do it anymore. Censure means you did it wrong. And that's going to we're going to let everybody in the profession know it. So we're going to publish it. Suspend means you lose your membership for a period of time, one, two or three years, up to three years. Anything more than that, you get expelled. We don't expel people generally for the first offense. And very, very few have been expelled. It's usually a six-month to two or three-year suspension of membership. That board decides whether our recommendation is right or wrong, and they'll change it. I'll have to defend what we wanted, what we recommended. Sometimes they'll up it. Sometimes they'll reduce it. But the board imposes the penalty. And then the respondent has the opportunity to take that penalty to the membership, which comes at the next meeting at the general business meeting. And they can appeal to the membership. And if the membership decides, well, the board was wrong and this guy is really okay, then they void the decision. There's no penalty. So that's the way it works. So far, so good. I hope you don't ever have to do it. But if you do, you at least have the confidence that you have a resource to make your fellow neurosurgeons accountable for what they say and do. Thank you very much.

American Association of Neurological Surgeons

professional conduct program

expert witness testimony

unbiased opinions

medical negligence suits