Six grievances result in action against five fellows

At its June 20, 2009, meeting, the AAOS Board of Directors considered six grievances filed under the AAOS Professional Compliance Program and alleging violations of the AAOS Standards of Professionalism (SOPs) on Orthopaedic Expert Witness Testimony. After considering the information presented and upon recommendations of the Hearing Panel of the Judiciary Committee and/or the Committee on Professionalism (COP), the Board took the following professional compliance actions against five Fellows:

• George A. Arangio, MD (Fogelsville, Pa.)—censure
• Robert W. Bright, MD (Rochester, N.Y.)—1-year suspension
• Steven R. Graboff, MD (Huntington Beach, Calif.)—2-year suspension
• Irving P. Ratner, MD (Burlington, N.J.)—censure
• Edwin H. Season III, MD (Columbus, Ohio)—two consecutive 1-year suspensions

George A. Arangio, MD
The grievance against Dr. Arangio was filed on Jan. 16, 2008, alleging violations of the Mandatory Standards Nos. 1, 2, and 3. The grievance arose from statements made in a written medical record review and during his courtroom testimony as an expert witness for the defense in a case alleging the defendant-orthopaedic surgeon’s failure to properly diagnose an Essex-Lopresti injury to the right forearm, which resulted in the need for additional corrective surgery. The jury trial returned a verdict in favor of the defendant-orthopaedist.

During the grievance hearing on Oct. 25, 2008, Dr. Arangio, his legal counsel, and the Grievant were present. Dr. Arangio was questioned by the panel about his testimony, which he said had been inaccurately portrayed. At the conclusion of the Grievance Hearing, Dr. Arangio referenced the SOPs and agreed that expert witnesses should not use absolute terms, such as those he employed within his courtroom testimony.

After thorough evaluation of the facts of the case, the courtroom documents, and the oral testimonies during the hearing, the COP Hearing Panel found Dr. Arangio in violation of Mandatory Standard No. 2 only, and recommended censure. No appeal was made, and the AAOS Board of Directors upheld the findings and recommendation of the COP Hearing Panel.

Robert W. Bright, MD
On Feb. 8, 2008, a grievance was submitted against Dr. Bright alleging violations of Mandatory Standards Nos. 1, 2, 3, 4, 5, 10, 12, and 13. The grievance arose from statements made by Dr. Bright in a written report and oral deposition as the plaintiff-patient’s medical expert in a lawsuit. The plaintiff alleged that the defendant-orthopaedic surgeon was negligent in caring for a slipped capital femoral epiphysis. The jury returned a verdict in favor of the defendant-orthopaedist and judgment was entered against the plaintiff for no cause of action.

Dr. Bright’s submitted curriculum vitae listed him as licensed through to “current;” however, it was determined that Dr. Bright was not licensed at the time of this case.

Neither Grievant nor Respondent attended the hearing held on Oct. 24, 2008. The COP Hearing Panel thoroughly reviewed the materials submitted, evaluated the facts, and found that Dr. Bright violated Mandatory Standards Nos. 2, 3, 4, and 10. The COP recommended that Dr. Bright be suspended from the AAOS for 1 year. No appeal of these findings and the recommendation was requested, and the AAOS Board of Directors, after careful deliberation and discussion, upheld the findings and recommendation.

Steven R. Graboff, MD
On April 10, 2008, a grievance was filed against Dr. Graboff alleging violations of Mandatory Standards Nos. 1, 2, 3, 4, 5, 7, 8, and 9. The grievance arose from statements made by Dr. Graboff in a medical-legal written report to plaintiff’s legal counsel. The report was part of a medical liability lawsuit in which the plaintiff-patient claimed that the defendant-orthopaedic surgeon failed to remove certain hardware (cerclage wires) during two surgeries on the right femur. It was further asserted that the presence of this hardware prevented curing of the patient’s femoral osteomyelitis and resulted in an above-knee amputation. The case, which named the hospital and additional physicians as defendants, was settled out of court without permission or knowledge of the defendant-orthopaedist.

At the grievance hearing on Oct. 24, 2008, the Grievant, two witnesses on behalf of the Grievant, and Dr. Graboff were present.

Dr. Graboff was initially absolute in his opinion that the Grievant had violated the standard of care by not removing all hardware and that there was no medical or surgical condition precluding removal of the hardware. He then contradicted himself and acknowledged that removing all hardware from an infected femur is not always possible, safe, or standard of care. Dr. Graboff further admitted his report had been based on lack of information and that the Grievant had neither fallen below the standard of care nor was responsible for the subsequent consequences.

After careful evaluation of all material submitted, as well as oral testimonies by both parties and witnesses on behalf of the Grievant, the COP Hearing Panel found

Dr. Graboff in violation of Mandatory Standards Nos. 1, 2, 3, 4, 5, and 7. The COP recommended that Dr. Graboff be suspended from the AAOS for 2 years.

Dr. Graboff appealed the recommendation of the COP Hearing Panel, and the Judiciary Committee conducted an appeal hearing in February 2009. Both parties were present and Dr. Graboff was represented by legal counsel. Following careful consideration, the Judiciary Committee unanimously agreed that the AAOS had afforded both parties due process and reaffirmed and adopted the report and recommendation of the COP. In their report, the Judiciary Committee opined that testimony is not narrowly defined within the context of oral depositions and/or courtroom examinations, but applies to written expert opinions as well as sworn testimony.

The Grievant was present when the AAOS Board of Directors considered the matter. Dr. Graboff did not attend or submit a written statement although he had notice and had been invited to do so. After comprehensive evaluation and discussion, the Board upheld the findings and recommendations of the COP Hearing Panel and Judiciary Committee.

Irving P. Ratner, MD
On May 12, 2008, a grievance was filed against Irving P. Ratner, MD, alleging violations of Mandatory Standards Nos. 2, 4, 6, 8, and 12. The grievance arose from statements made by Dr. Ratner in a Certificate of Merit and in his oral deposition as expert witness for the plaintiff in a medical malpractice lawsuit. The underlying case claimed that a 1-inch leg length discrepancy outcome was the result of negligent performance during total hip arthroplasty. The orthopaedic surgeon and hospital were both named as defendants. The hospital-employed orthopaedist was later dismissed with prejudice from the lawsuit and the hospital paid an out-of-court settlement.

On Feb. 27, 2009, the COP Hearing Panel conducted a hearing at which the Grievant was present but Dr. Ratner did not appear. After thorough consideration of the issues and all materials submitted, the Hearing Panel found Dr. Ratner in violation of Mandatory Standards 2, 4, and 6 and recommended that the Board of Directors officially censure Dr. Ratner.

Neither the Grievant nor Dr. Ratner appealed the recommendation to the Judiciary Committee. After careful deliberation, the AAOS Board of Directors upheld the findings and recommendation of the COP Hearing Panel and voted to censure Dr. Ratner.

Edwin H. Season III, MD
On Oct. 8, 2007, a grievance was filed against Dr. Season alleging violations of Mandatory Standards Nos. 1, 3, and 6. The grievance arose from statements made by Dr. Season during deposition testimony as expert for the plaintiff in a lawsuit. In this case, the plaintiff-patient contended negligence in the defendant-orthopaedic surgeon’s failure to recognize signs and symptoms of osteomyelitis and to appropriately treat the osteomyelitis. The claims against the defendant-orthopaedist and medical center were later dismissed with prejudice.

On June 20, 2008, the COP Hearing Panel conducted a grievance hearing attended by both parties. When asked by the panel whether all records were available to him, Dr. Season admitted that he had relied on the attorney to provide materials to him and did not review all of the records.

After careful evaluation of all material submitted as well as oral testimony given by both parties during the proceedings, the hearing panel found Dr. Season in violation of Mandatory Standards Nos. 3 and 6. In making its decision and recommendation, the panel considered that Dr. Season did not evaluate care provided in light of generally accepted standards at the time, place, and in the context of care delivered and did not seek and review all pertinent medical records related to the particular patient prior to rendering an opinion on the medical or surgical management of the patient. The COP recommended that Dr. Season be suspended from the AAOS for 1 year.

Dr. Season appealed the recommendation of the COP Hearing Panel and in February 2009, the Judiciary Committee conducted an appeal hearing. The Grievant was present; however, Dr. Season did not appear or submit a written statement. The Judiciary Committee unanimously determined that due process had been afforded Dr. Season and that the clear weight of evidence supported the COP Hearing Panel’s recommendation.

When the AAOS Board of Directors considered this matter, neither of the parties attended. After careful deliberation and discussion, the Board upheld the findings and recommendations of the COP Hearing Panel and Judiciary Committee.

Edwin H. Season III, MD
On Nov. 27, 2007, a separate grievance by a different Grievant was filed against Dr. Season alleging violations of Mandatory Standards Nos. 3, 4, and 7. This grievance arose from statements made by Dr. Season during deposition testimony as expert for the plaintiff in a lawsuit. In the underlying court case, the plaintiff-patient asserted that the defendant-orthopaedic surgeon was negligent in failing to provide proper anticoagulation treatment while treating an ankle fracture. The claims against the defendant-orthopaedist were voluntarily dismissed with prejudice.

On June 20, 2008, the COP Hearing Panel conducted a grievance hearing attended by Dr. Season. The Grievant did not attend the hearing but provided a written statement to the panel on his behalf.

After careful evaluation of all material submitted as well as oral testimony given by Dr. Season during the proceedings, the COP Hearing Panel found Dr. Season in violation of Mandatory Standards Nos. 3, 4, and 7 and recommended that Dr. Season be suspended from the AAOS for 1 year.

Dr. Season appealed the recommendation of the COP Hearing Panel and in February 2009, the Judiciary Committee conducted an appeals hearing. Neither Dr. Season nor the Grievant were present nor did they submit additional materials or written statements in lieu of their appearances. The Judiciary Committee reviewed all the issues and submitted materials—including the report from the COP Hearing Panel—and noted that during the Grievance Hearing, Dr. Season attempted to recant a portion of his expert witness testimony. Following careful consideration, the Judiciary Committee unanimously agreed that both parties had been afforded appropriate due process and reaffirmed and adopted the report and recommendation of the COP.

Neither party to the grievance was in attendance during consideration by the AAOS Board of Directors. After thorough evaluation and discussion, the Board upheld the findings and recommendations of the COP Hearing Panel and Judiciary Committee and further voted that this suspension run in sequence with any other AAOS professional compliance action.

SOPs on Orthopaedic Expert Witness Testimony

1. An orthopaedic expert witness shall not knowingly provide testimony that is false.
2. An orthopaedic expert witness shall provide opinions and/or factual testimony in a fair and impartial manner.
3. An orthopaedic expert witness shall evaluate the medical condition and care provided in light of generally accepted standards at the time, place and in the context of care delivered.
4. An orthopaedic expert witness shall neither condemn performance that falls within generally accepted practice standards nor endorse or condone performance that falls outside these standards.
5. An orthopaedic expert witness shall state how and why his or her opinion varies from generally accepted standards.
6. An orthopaedic expert witness shall seek and review all pertinent medical records related to a particular patient prior to rendering an opinion on the medical or surgical management of the patient.
7. An orthopaedic expert witness shall have knowledge and experience about the standard of care and the available scientific evidence for the condition in question during the relevant time, place and in the context of medical care provided and shall respond accurately to questions about the standard of care and the available scientific evidence.
8. An orthopaedic expert witness shall provide evidence or testify only in matters in which he or she has relevant clinical experience and knowledge in the areas of medicine that are the subject of the proceeding.
9. An orthopaedic expert witness shall be prepared to state the basis of the testimony presented and whether it is based on personal experience, specific clinical or scientific evidence.
10. An orthopaedic expert witness shall have a current, valid, and unrestricted license to practice medicine in any state or U.S. territory.
11. An orthopaedic expert witness shall maintain a current certificate from the American Board of Orthopaedic Surgery (ABOS), the American Osteopathic Board of Orthopaedic Surgery, or the certifying body, if any, in the country in which the orthopaedic surgeon took his or her training.
12. An orthopaedic expert witness shall be engaged in the active practice of orthopaedic surgery or demonstrate enough familiarity with present practices to warrant designation as an expert.
13. An orthopaedic expert witness shall not misrepresent his or her credentials, qualifications, experience or background.
14. An orthopaedic expert witness shall not agree to or accept an expert witness fee that is contingent upon the outcome of a case.
15. Compensation for an orthopaedic expert witness shall be reasonable and commensurate with expertise and the time and effort necessary to evaluate and testify on the facts of the case.