ORTHOPAEDIC OPINION AND TESTIMONY AAOS ETHICS COMMITTEE Charles Carroll IV, MD 1.

ORTHOPAEDIC OPINION AND TESTIMONY

AAOS ETHICS COMMITTEE

Charles Carroll IV, MD

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Objectives• Be familiar with the concept and

principles of orthopaedic opinion and testimony

• Know how to prepare if named as a defendant or called to testify as part of the treatment team

• Become aware of the AAOS Standards of Professionalism on Orthopaedic Expert Opinion and Testimony

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Case 1After the weekly resident’s conference, one of your colleagues tells you that he is working for an attorney as an expert witness. He is excited about the

opportunity and the Thnkstock.com/Wavebreak Media

extra income that he can earn. The case involves a malrotated and healed tibia fracture.

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In your opinion, is your colleague qualified?

Is the resident qualified as an Expert under the definition in the Federal Rules of Evidence?

Is it ethical for the resident to serve as an expert witness while in training?

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Is moonlighting allowed by your program?

Will you say anything to the administrative chief resident?

Will you say anything to the program director or chairman?

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Will you say anything to the resident who is involved?

Will you say anything to the other residents?

Recommended ActionsConsider speaking further to your co-resident and discuss whether he or she is qualified

Help him/her consider the ethical issues of participation as it relates to the program, faculty, and possibly the university

Explore with the resident the potential ramifications of his/her action

Go up the leadership chain to discuss as needed

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Case 2

Two months later you learn that you have been named as a part of a professional liability claim.

Thinkstock.com/Stockbyte/altrendo images

What do you do first?

Who should you notify?

How do you prepare for the trial?

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Case 2 Continued

It is the day before the trial. You have prepared as recommended, but understandably are somewhat tired and anxious.  Thinkstock.com/Stockbyte/altrendo images

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Is there anything you can do at this stage?

What should you do while testifying?

What should you do after your testimony?

Should you sign and submit the AAOS Expert Witness Affirmation Statement?

Case 3

Six months later a fellow resident and good friend of yours is called as a fact witness in a suit against an attending surgeon at your Thinkstock.com/Stockbyte/altrendo images

hospital. Knowing that you were part of a professional liability claim, your friend comes to you for advice.

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What should you tell your friend to do first?

What is the difference between a fact witness and being a party to a liability claim?

What is the difference between a fact witness and an expert witness?

Summary

Expert Witness Testimony is an important issue in contemporary Orthopaedics.

Good experts are completely trained and have practical experience.

Training programs and universities may have rules regarding outside activities beyond the scope of residency training.

Be aware of the AAOS Standards of Professionalism on this topic.

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References

American Academy of Orthopaedic Surgeons: Code of Ethics and Professionalism for Orthopaedic Surgeons, V. C. Adopted October 1988, revised 2011.http://www.aaos.org/about/papers/ethics/code.asp

American Academy of Orthopaedic Surgeons: Standards of Professionalism on Orthopaedic Expert Opinion and Testimony. Adopted April 2005, amended May 2010.http://www3.aaos.org/member/profcomp/ewtestimony_May_2010.pdf

American Academy of Orthopaedic Surgeons:Expert Witness Affirmation Statement.http://www3.aaos.org/member/expwit/statement.cfm

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Council on Ethical and Judicial Affairs: Code of Medical Ethics, Opinion 9.07. Chicago, IL, American Medical Association, ed 2010-2011.

Jerrold L: The role of the expert witness. Surg Clin North AM 2007:87(4)889-901.

Federal Rules of Evidence, Rule 702 Testimony by Experts. Washington, D.C.,U.S. Government Printing Office, 2009. http://www.utd.uscourts.gov/forms/evid2009.pdf

Frye v. United States, 293F. 1013 (D.C. Cir. 1923)

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

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