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The Anatomy of the Testifying Orthopedic Spine Surgeon’s Credentials and Understanding Board Certification Unique to That Specialty - Ethical Considerations in Workers Compensation and Other Expert Medical Testimony

 

(revised September 2, 2016)

 

Preparing for a Battle of Medical Experts in a litigated medical claim is critical to the outcome of many cases where medicine and the law collide. Therefore close evaluation of all testifying physicians with a focus on credibility and reliability is always an essential aspect, especially at deposition.

 

The fact that the expert is well known should not be a deterrent to doing a thorough job. Because it is my own practice, and what I advise other medical consultants when working on cases to do, is to think about what you might advise a close relative or friend if they asked instead of the client or lawyer. So then, apropos to this essay - suppose my favorite aunt called to ask if a particular surgeon were properly qualified to perform a spinal surgery on my cousin – what would I tell her? Well of course depends upon many of the same factors that I would advise an attorney evaluating any physician’s qualifications prior to being retained as their expert, and must be covered carefully on deposition of any physician that opposing counsel has declared as their own.

 

To begin, for a little bit of reference (bolding in this piece is for emphasis), according to the physician AMA Code of Ethics [1] “…In various legal and administrative proceedings, medical evidence is critical. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice…When physicians choose to provide expert testimony…All physicians must accurately represent their qualifications and must testify honestly. Physician testimony must not be influenced by financial compensation; for example, it is unethical for a physician to accept compensation that is contingent upon the outcome of litigation…”

 

From the Legal perspective with respect to all civil cases in Georgia, before an expert can give substantive testimony for a litigant they first must be properly qualified. This is true even in administrative law cases such as workers compensation, as they too could find themselves in state court later in the litigation. In the practical sense, it simply means that even when different expert medical views are presented, the experts must be credible, so that their opinions may be reasonably relied upon by the judge or jury, who must weigh the medical evidence being presented. Likewise, any information that diminishes the credibility or reliability of the expert must also be brought out, typically by the attorney adverse to the testifying doctor…but as experienced attorneys know, not always!

 

Moreover, under Georgia law, O.C.G.A. § 24-7-702 (2015) “…Expert opinion testimony in civil actions; medical experts requires that in order to testify the witness must be qualified as an expert by knowledge, skill, experience, training, or education.” [2] Of course notwithstanding that they are otherwise “qualified” there are still other requirements that are beyond the scope of piece. In short, the testimony must also be based upon sufficient facts or data, be the product of reliable principles and methods, and the testifying witness must have applied the principles and methods reliably to the facts of the case.

 

In the Administrative Law setting, such as Workers Compensation, because there is no jury consequently the importance of the judges’ role to perform gatekeeping - keeping dubious medical evidence that could be too prejudicial away from their eyes – is diminished. In Georgia, the statute for such administrative cases calls for a less strict application, earning it the moniker “Daubert-lite”. Still, these qualifying factors should be important to the judge, who is still required to consider them and although not always done, in this writer’s opinion the rationale should be memorialized in the opinion or order, so that its basis may be later reviewed and appealed.

 

So then, let’s come back to the basic qualifying criteria, that the expert be qualified by knowledge, skill, experience, training or education, and apply it to our topic: The Testifying Fellowship Trained Board Certified Orthopedic Spine Surgeon. Although the recitation of the expert the credentials is an integral part of nearly every deposition, I find that sometimes lawyers - to use a baseball metaphor – do not remember to cover first base. True enough, there is a fair amount of preparation work that has to be done to get it right, and this can be tedious and seem mundane. Yet sometimes it can lead to information that can change the entire course and outcome of the case, and maybe even save a patient from a bad outcome.

 

First, let’s go over some of the basic terminology of credentialing. The American medical education, licensure and specialty board certification system is overseen closely, by multiple independent institutions, which work in cooperation to ensure the quality of medical education and post graduate training. These organizations include The Association of American Medical Colleges (AAMC), The American Board of Medical Specialties (ABMS), and their 24 member boards that cover all of the accepted specialties and sub-specialties - in our illustrative example the American Board of Orthopaedic Surgery (ABOS).

 

Then the Accreditation Council for Graduate Medical Education (ACGME) accredits sponsoring institutions and residency and fellowship programs, confers recognition on additional program formats or components, and dedicates resources to initiatives addressing areas of importance in graduate medical education. Other important resources are the State Medical Boards, the website of the testifying expert and wherever your imagination and a good search engine will take you.

 

Separately from the system described above, there exists a collateral system consisting of practitioners who seem to create their own credentials, and to the untrained eye, and sometimes even seasoned attorney, appears to be legitimate. According to QuackWatch [3] , “…Kimball Atwood, M.D., has neatly explained how these practitioners create their own credentials…” in the absence of those that are more mainstream:

 

Practitioners of pseudomedicine band together to create pseudomedical pseudoprofessional organizations, complete with pseudo-legitimate names, pseudo-legitimate conferences, pseudo-legitimate appearing websites, pseudo-"board certifications," protocols for pseudo-therapies, patient brochures hyping pseudo-therapies, pseudo-consent forms for pseudo-therapies, pseudo-Institutional Review Boards to approve pseudo-research, pseudo-journals to publish reports of pseudo-research, very real contributions from pseudoscientific corporations to help pay for very real advertising, very real lobbying, very real legal representation, and more.

 

All alternate boards and certification courses are not inherently nefarious, and sometimes serve legitimate needs; however none are as rigorously overseen as those that are ABMS and/or ACGME sanctioned. So, if a practitioner is holding out some certification as a credential, it is important to evaluate each one individually. Using our illustration the testifying Fellowship Trained, Board Certified Orthopedic Spine Surgeon, let’s see how to approach “qualifying” her as an expert, or spoiler alert…not so much.

 

Step #1, much like any other job “interview”, we start with the CV or resume presented. These days there are often many versions available in places like the practice website or other online resources, colleagues who may have deposed the doctor or used her in the past for an IME, for some examples. They should be compared for differences of substance, not style. From the CV’s presented, this is what could be gleaned with regard to her relevant knowledge, skill, experience, training or education in her CV:

 

  • Doctorate of Medicine from a US Medical School (MD 1979)

  • Internship: Rotating at US Hospital July 1979 to June 1980

  • Residency: General Surgery at US Hospital July 1980 to June 1981

  • Residency: Orthopaedic Surgery at US Hospital January 1982 to December 1984.

  • Spine Fellowship – 1997, under specific professor, at prestigious clinic in Germany

  • Academic Appointment – Clinical Instructor Local Medical College

 

Certifications included the following:

  • American Board of Orthopaedic Surgery, 1987, recertification, 1997 and 2006

  • American Board of Spine Surgery 1998

 

Then, her CV information should be compared with what on the website or other sources such older resumes or previous testimony. It sometimes pays to check again close in proximity to the date of the deposition to confirm there are no changes. In her case the website claimed:

 

  • completed her Internship [US Hospital #1]

  • Two Residencies, first in general surgery at [US Hospital #2], and the second in orthopaedic surgery at [US Hospital #3].

  • Certified by the American Board of Orthopaedic Surgeons

  • Certified by the American Board of Spine Surgery

  • Clinical instructor with Local Medical College

 

The testifying doctor’s website had the audacity to even describe the prodigious rigor of the training for her specialty in Orthopaedic Spine Surgery:

 

The training for the specialty is long and rigorous. A five-year orthopaedic surgical residency follows medical school. Year one is a general surgical residency and basic orthopaedic training. Years two through five focus specifically on orthopaedics… Many orthopaedic surgeons are “fellowship-trained”, which means they have received in-depth training beyond their residency in a super-specialty such as the spine (e.g., orthopaedic spine surgeon). Fellowships usually involve clinical experience combined with research in the super-specialty for various periods of time up to two years…

 

OK, sounds good. Now…for the fact checking.

 

First of all, this doctor did not complete two residencies, and the one that she did complete was actually not accomplished in the way described on the website. Rather, it appears she pieced together the minimal requirements for General Orthopaedic Surgery. So for example, although she pointed out that “Year one is a general surgical residency and basic orthopaedic training”, her own first year appears to have been a traditional Rotating Internship which is Medical in nature, not surgical. In fact she only performed one or two years that might even qualify toward the requirements of completion of a General Surgery residency.

 

The surgeon also explains on her website that “…Years two through five focus specifically on orthopaedics”. Yet her own second year was actually in General Surgery, and not Orthopaedics. In fact, looking closely this doctor would have completed only the last three of her five years post-graduate training in Orthopaedic Surgery, it seems one short of the usual training she herself described. Of course, this training is in General Orthopaedics, and only some minor portion of the curriculum is devoted to spine surgery.

 

The diligent attorney should find out all of these details in deposition, and if necessary, ask for the residency case log submitted when he or she applied to take the boards. My questioning would include drilling down to the exact number of months of actual orthopedic spine surgery was included in her training in General Orthopedics and what function she filled (primary surgeon, first assistant surgeon, and so forth). It would be quite relevant to my inquiry as to how many spine surgeries and what they were, that the surgeon completed before holding herself out as having expertise as a spine surgeon. The absence of the requisite foundation within the closely supervised environment of residency and fellowship training is something that even years of experience or thousands of operations cannot be expected to rectify.

 

So then, coming back to my favorite aunt, I would insist on the surgeon being either a Board Certified neurosurgeon, or Board Certified Orthopedic Surgeon, with Fellowship Training in Spine (preferably at a center of excellence for spine surgery). As the doctor accurately explained on her website, “…Many orthopaedic surgeons are “fellowship-trained”, which means they have received in-depth training beyond their residency in a super-specialty such as the spine (e.g., orthopaedic spine surgeon). Fellowships usually involve clinical experience combined with research in the super-specialty for various periods of time up to two years...” On the surface the doctor’s Spine Fellowship – 1997 under specific professor at some prestigious clinic in Switzerland seems to fulfill that requirement. But it does not…for at least two distinct material reasons. The first reason is that such post-doctoral training outside the country is generally not accepted by the ACGME.

 

The second reason required a deeper dive to reveal, such as looking into filings with the state board of medicine and various medical specialty boards - but it revealed some startling information; perhaps because mispresenting your credentials is actionable by the board and can result in discipline, including loss of licensure. In reality, this physician’s “Fellowship” in Spine Surgery in Switzerland lasted from July 31st, to September 5th, 1997, a matter of only five weeks. Needless to say this is an outrageous misrepresentation to the public, and others who might refer patients, or have to assess the surgeon’s opinions for reliability and credibility, and how much probative weight it should be given, if any at all.

 

Not only is the typical Spine Fellowship more than ten times as long, taking this a bit further since she was not licensed to practice medicine in Switzerland, it is doubtful she would have been allowed to do much more than attend lectures and perhaps observe others doing surgery. This sounds a whole lot more like CME and a trip to Europe than fellowship training, at least to me. In fact if taking the deposition, I would inquire exactly what it entailed, and what level of participation was involved. Perhaps I’d ask if she traveled, and maybe purchased a car while she was there.

 

Coming back to the concept of legitimate board certification, contrary to what many experienced people believe, there is no ABMS Board Certification in the subspecialty of Orthopaedic Spine Surgery. In fact, the ABOS which derives its legitimacy from its membership in the American Board of Medical Specialties, offers only two sub-specialty certificates, one in Hand Surgery and the other in Orthopaedic Sports Medicine. None is offered in Spine Surgery, which many people are surprised to learn.

 

So then, what actually is this American Board of Spine Surgery that the surgeon holds out to the public as a credential? Well, although they have a section entitled The Importance of Certification in Spine Surgery at the time I was preparing for her deposition, there were only two surgeons in all of Georgia so credentialed. Notably they did not include any of the orthopedic spine surgeons at Emory, or others well respected in the medical community. Also, I found it more than incredulous that even as this dubious credential was being promoted on her website, she herself was no longer so certified!

 

A few last notes. While her CV touted that she was an instructor and the Local Medical College, she was not involved in post-graduate training of residents or spine fellows. Rather, the surgeon was a preceptor for Nurse Practitioners. Then, all gaps in the CV have to be explained. For example in this situation there is a gap between June 1981 when she completed her first year of General Surgery Residency, and January 1982 when she began her training in Orthopaedic Surgery. This interruption is quite unusual and for example could reflect a physician who did not pass the national boards on the initial attempt, did not match with any residency program and had to find a spot in some other manner, or maybe even required some remedial assistance before moving on. There are some legitimate explanations for such a delay such as illness, doing religious or other not for profit missionary work or military service, for a few examples.

 

So then, in conclusion, I’d have to tell my favorite Auntie that she should stay away from this dubiously trained, suspiciously credentialed and generally misleading doctor, lest they operate for no reason and at the wrong level! Anyone thinking of using this surgeon as their expert should heed the same advice.

 

Please contact me for consultation on your case.

 

Mitchell S. Nudelman, MD, JD, FCLM

Copyright, 2016

 

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[1] AMA Code of Ethics, Opinion 9.07 - Medical Testimony http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion907.page

 

[2] GEORGIA CODE, Copyright 2015 by the State of Georgia O.C.G.A. § 24-7-702 (2015). Expert opinion testimony in civil actions; medical experts; pretrial hearings; precedential value of federal law.

 

[3] Quackwatch is now an international network of people who are concerned about health-related frauds, myths, fads, fallacies, and misconduct. Its primary focus is on quackery-related information that is difficult or impossible to get elsewhere. http://www.quackwatch.org/04ConsumerEducation/Nonrecorg/abcmt/overview.html

 

 

 

 

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