Published 10/23/2024
At its meeting on June 10, 2024, the Board of Directors of the American Association of Orthopaedic Surgeons (AAOS) considered three grievances filed under the AAOS Professional Compliance Program. The following actions were taken:
Thomas M. DeBerardino, MD
San Antonio, Texas
1-Year Suspension
A grievance alleging violations of the Standards of Professionalism on Orthopaedic Expert Opinion and Testimony was filed against Thomas M. DeBerardino, MD. The grievance was based on statements made by Dr. DeBerardino in an expert report and deposition testimony he provided while serving as an expert in a medical liability lawsuit.
The patient in the underlying case was a man, aged 57 years, who sustained a distal radius fracture. The patient’s medical history included multiple comorbidities: heavy smoking for 40 years, bipolar disorder, a cerebrovascular accident, chronic obstructive pulmonary disease, Parkinson’s disease, Alzheimer’s disease, fibromyalgia, neuropathy, and diabetes insipidus. The treating orthopaedic surgeon interpreted the radiographs as showing a comminuted, dorsally angulated, shortened Colles fracture with significant intra-articular displacement. Because of the patient’s comorbidities, the treating surgeon elected to perform pin fixation and did not feel that a total anatomic reduction was needed. The patient underwent fixation of the complex fracture and was placed on antibiotics.
Postoperatively, drainage was noted at one of the pin sites, and a long arm cast was placed. Follow-up continued, and the cast and Kirschner wires (K-wires) were removed. Swelling and warmth were noted, and labs were ordered to rule out infection. The patient was informed that one of the pins remained, and he did not return to the treating surgeon for care. An open removal of the retained pin was done by another surgeon. The patient had a subsequent injury to the same wrist a month later and underwent a closed reduction with placement of a short arm cast. The patient had continued nerve pain, but due to his declining health, further surgery was contraindicated and he was referred to pain management.
After thorough consideration, both the Committee on Professionalism Grievance Hearing Panel (the “COP”) and Judiciary Committee (the “JC”) (collectively, the “Committees”) determined that Dr. DeBerardino violated Mandatory Standard No. 2. In the opinion of the Committees, Dr. DeBerardino made statements that were not fair and impartial. Specifically, the Committees found that Dr. DeBerardino described pins as “missiles”; that he described the smooth pin fixation in the patient as “woefully inadequate”; and that he characterized high-energy fractures as having resulted from a ground-level fall. The JC’s opinion was that these statements were embellished. Dr. DeBerardino argued that he did not receive notice that these statements in his testimony allegedly violated the Mandatory Standards.
The JC noted that the testimony was referenced in the Grievance Statement and the Grievant included Dr. DeBerardino’s deposition transcript in the grievance materials, with passages related to the violative testimony underscored. Accordingly, the JC’s opinion was that Dr. DeBerardino was on notice that the testimony would be considered as part of the grievance.
The Committees also agreed that Dr. DeBerardino violated Mandatory Standard No. 4. In the opinion of the Committees, his testimony condemned performance that falls within generally accepted practice standards. The Committees found that Dr. DeBerardino condemned the surgeon’s use of pins and K-wires without a volar plate. The JC’s opinion was that although volar plating might have given the patient a better result in the near term, various choices of internal fixation (including K-wires) are generally accepted.
The Committees further agreed that Dr. DeBerardino violated Mandatory Standard No. 6. In the opinion of the Committees, Dr. DeBerardino did not review all pertinent opinions and records prior to rendering his expert opinion. Specifically, the Committees found that when Dr. DeBerardino issued his expert report, he only had one anterior-posterior view from the date of the surgery, as he had difficulty opening the x-rays initially. The JC noted that he did not further request or seek other views from that date. The Committees also found that Dr. DeBerardino did not seek and review the deposition of the treating surgeon.
urthermore, the Committees found that Dr. DeBerardino did not review the opinion of the medical review panel, and he only discussed the medical review panel’s opinion with counsel. The JC’s opinion was that the lateral intraoperative wrist radiograph, the deposition of the treating surgeon, and medical review panel opinion were pertinent documents that Dr. DeBerardino failed to review.
Dr. DeBerardino was not found to be in violation of Mandatory Standards Nos. 1, 3, 5, 7, or 11.
After thorough consideration, the AAOS Board of Directors upheld the determinations of the JC that Dr. DeBerardino violated Mandatory Standards Nos. 2, 4, and 6 and voted to suspend Dr. DeBerardino for a period of 1 year.
Thomas M. DeBerardino, MD
San Antonio, Texas
1-Year Suspension
Concurrent to any other professional compliance action
A grievance alleging violations of the Standards of Professionalism on Orthopaedic Expert Opinion and Testimony was filed against Thomas M. DeBerardino, MD. The grievance was based on statements made by Dr. DeBerardino in deposition and trial testimony he provided while serving as an expert in a medical liability lawsuit.
The patient in the underlying case was a man, aged 63 years, who presented to the surgeon after he sustained a ground-level fall 7 weeks prior and ruptured his right quadriceps tendon. The patient’s medical history included an aspirin allergy and hydrocephalus, for which he had a shunt placed many years prior. The patient was cleared for surgery by his primary care physician with the notation of “increased risk because of obesity, history of atopy (wheezing) and hyperlipidemia. I believe he represents a significant risk for postoperative thrombophlebitis.” The operating surgeon did not place the patient on deep vein thrombosis (DVT) prophylaxis, reasoning that it was outpatient surgery; the patient did not have a hypercoagulability disorder; and he was instructed to ambulate while wearing the knee immobilizer. The patient was also allergic to aspirin, and given his history of brain surgeries, the operating surgeon was concerned that he could fall while being on anticoagulants. The patient underwent right quadriceps tendon repair, and no complications were noted. At the first postoperative visit, the patient was doing well and was advised to continue ambulating with the immobilizer. The patient died 3 weeks later of a saddle pulmonary embolism, with the additional finding of a DVT in the right leg.
After thorough consideration, both the COP and JC determined that Dr. DeBerardino violated Mandatory Standard No. 1. In the opinion of the Committees, Dr. DeBerardino knowingly provided false testimony. The JC found that he knowingly provided false information when he agreed that the Caprini scoring index is recognized as a standard authority in orthopaedic surgery to assess DVT risk; testified that postoperative leg elevation increases the risk for DVT; and testified that the patient’s injury, followed by the surgical procedures, constituted a “double crush,” which was a contributing factor for the development of DVT.
The Committees agreed that Dr. DeBerardino violated Mandatory Standard No. 2. In the opinion of the Committees, Dr. DeBerardino made statements that were not fair and impartial. Specifically, the Committees found that Dr. DeBerardino (1) stated that a quad tendon repair has a much higher risk of DVT postoperatively and that a quad tendon repair is more “high risk than a total knee. … It’s more akin to and worse than a total knee arthroplasty with regard to risk based on an orthopaedic judgment”; (2) provided a definition of major surgery as anything longer than 45 minutes; (3) compared a knee immobilizer to a “ski boot on your leg all the way up past your knee into your thigh”; and (4) stated that ambulation with a knee immobilizer is only “a skosh better than not walking at all.”
The Committees also agreed that Dr. DeBerardino violated Mandatory Standard No. 4. In the opinion of the Committees, his testimony condemned care that fell within generally accepted practice standards. It was the JC’s opinion that, although some orthopaedic surgeons might recommend a pre- or postoperative ultrasound, it is not generally required. Additionally, it was the JC’s opinion that, although DVT chemoprophylaxis might have been a treatment option, its duration for 6 to 8 weeks was not a standard outlined in the materials and articles submitted for the grievance record by either party.
Dr. DeBerardino was not found to be in violation of Mandatory Standard No. 3.
After thorough consideration, the AAOS Board of Directors upheld the findings of the JC that Dr. DeBerardino violated Mandatory Standards Nos. 1, 2, and 4 and voted to suspend Dr. DeBerardino for a period of 1 year to run concurrently with any other action.
Joseph F. Fetto, MD
New York, New York
2-Year Suspension
A grievance alleging violations of the Standards of Professionalism on Orthopaedic Expert Opinion and Testimony was filed against Joseph F. Fetto, MD. The grievance was based on statements made by Dr. Fetto in his affidavit/letter and deposition testimony he provided while serving as an expert in a medical liability lawsuit.
The patient in the underlying case was a man, aged 56 years, who underwent a right total knee arthroplasty (TKA). The operating surgeon indicated that the postoperative radiographs showed a well-placed, -sized, and -aligned TKA. Postoperatively, the patient developed stiffness in the knee despite physical therapy following surgery, and his active and passive range of motion (ROM) were 0 to 90 degrees. Workup for possible infection yielded a normal sedimentation rate and C-reactive protein level, and the operating surgeon interpreted follow-up imaging as normal. At his last visit to the operating surgeon, the patient complained of pain and limited ROM. Revision surgery was discussed as a salvage procedure, and the patient was advised to continue physical therapy. The patient underwent a subsequent revision by another surgeon where the femoral component size was changed from 75 mm to 70 mm. After revision, the patient had worsening stiffness and required manipulation under anesthesia as well as arthroscopic lysis of adhesions. After the revision, the patient’s ROM was 15 to 80 degrees, which was less than it was prior to the revision.
After thorough consideration, both the COP and the JC determined that Dr. Fetto violated Mandatory Standard No. 4. The JC concurred with the COP’s analysis that although preoperative planning is required for TKA, preoperative templating, even though it may be recommended by some orthopaedic surgeons, is not the standard of care. In addition, the Committees took issue with Dr. Fetto’s testimony that an early revision should have been performed, noting that it would be within generally accepted practice standards to not immediately recommend a revision when a patient develops arthrofibrosis and stiffness.
Regarding Mandatory Standard No. 5, both Committees found that Dr. Fetto was unable to sufficiently explain why preoperative templating was required as the standard of care in this case. Although his grievance statement said that he learned to template during his residency and fellowship more than 30 years ago, Dr. Fetto offered no specific literature, scientific evidence, or other support with merit for his opinion.
Both Committees also found that Dr. Fetto violated Mandatory Standard No. 6. During his deposition testimony, Dr. Fetto was questioned by counsel on whether he had reviewed the treating surgeon’s deposition. The COP and JC noted that Dr. Fetto’s first two responses indicated he had not reviewed the deposition, but his third response was that he may have but could not remember what he had reviewed. The Committees concluded that the variability of Dr. Fetto’s responses was indicative of not having reviewed the deposition that was relevant to the formation of his opinion.
Although the Committees agreed on the violations, the COP recommended a suspension of 1 year, but the JC recommended a suspension of 2 years. The JC concluded that the longer suspension was warranted because Dr. Fetto’s opinions were based on training he received several decades ago, without the benefit of any additional research or support as to the then-current standards.
After thorough consideration, the AAOS Board of Directors upheld the findings of the JC that Dr. Fetto violated Mandatory Standards Nos. 4, 5, and 6 and voted to suspend him for a period of 2 years.
Additional actions not related to the Standards of Professionalism
At its meeting on June 10, 2024, the AAOS Board of Directors considered the following matters not related to the AAOS Standards of Professionalism and took the actions indicated.
Lynn M. Lindaman, MD
Ankeny, Iowa
Expelled
In February 2024, a jury found Dr. Lindaman guilty of one count of sexually abusing a child, a second-degree sexual assault felony. As a result of the felony conviction, the Iowa Board of Medicine issued an order in March 2024 permanently revoking his license to practice medicine.
The AAOS Board of Directors voted to expel Dr. Lindaman.
Thomas Marks, MD
Newbury, New Hampshire
Expelled
In January 2023, the New Hampshire Board of Medicine entered an Order of Emergency Suspension of Dr. Marks’ license to practice medicine as a result of his arrest on charges of three counts of aggravated sexual assault of a patient. He was arraigned and released on bond. In lieu of a hearing, Dr. Marks entered into a Voluntary Preliminary Agreement Not to Practice, which was ratified by the Medical Board in March 2023.
The AAOS Board of Directors voted to expel Dr. Marks.
For more information on the AAOS Professional Compliance Program, visit aaos.org/profcomp.