Professing Professional Conduct: AANS Raises the Bar for Expert Testimony

Author:Mr Russell Pelton
Profession:Ross & Hardies

Intense interest from professional associations and media. A flurry of inquiries from AANS members. Nods of approval from the federal courts, the American Medical Association, and others.

The subject of this heightened activity is the American Association of Neurological Surgeons' professional conduct program, recently in the national media spotlight because of two high profile cases, Austin v. AANS and Lustgarten v. AANS. While the progress and disposition of these cases illustrate the program as a paragon of professional self-regulation, for nearly 20 years the AANS professional conduct program has accomplished much more than serving as an arbiter of professional testimony by neurosurgeons in court cases, although attention has been focused on this area more frequently than on other areas. The program on the whole serves to provide an equitable and impartial system for upholding the AANS code of ethics and resolving complaints of unprofessional conduct.

Do Something About It

The premise of AANS' professional conduct program is the idea that membership in a professional association requires conduct which meets a high professional standard. It stands to reason that when members believe other members have acted outside of professional boundaries, they feel compelled to do something about it. They further expect their professional association to take appropriate action.

Such was the case in 1983 when Carl Hauber, the AANS executive director at the time, framed the problem: When the association fielded a member complaint, it might be ignored, particularly if there was no evidence to support the allegation; if the complainant was insistent the issue might be referred to one committee or another for an investigation. Unfortunately on some occasions those committees found that they were investigating the wrong person and that the "bad guy" was the one who had initiated the complaint. There was neither a mechanism in place to evaluate the seriousness of member complaints, nor a uniform and equitable procedure that could deal with them.

In response to these problems the professional conduct program was devised. The AANS Board of Directors made the Professional Conduct Committee, which previously had been used only sporadically, the arbiter of all member complaints. The committee's charge was to address complaints on an impartial basis, to conduct hearings where appropriate-with due process protections for all parties concerned-and to make unbiased recommendations to the board.

In 1983 Procedural Guidelines were adopted to provide the ground rules under which the committee would evaluate complaints. Under those guidelines, which remain modified but intact today, it is the complainant's responsibility to collect all relevant evidence and present it to the committee. The guidelines further provide that after the complainant's supporting material is received, copies are sent to the charged neurosurgeon who is given the opportunity to respond in whatever fashion he or she believes appropriate. Both sides' submissions are furnished to all members of the Professional Conduct Committee for review before a hearing.

The guidelines are intended to ensure a standard of quality and impartiality in expert testimony provided by neurosurgeons on either side of professional liability cases.

Hearings normally are scheduled in conjunction with the annual meetings of the AANS or CNS to minimize schedule disruption and expense for all parties. Either side may have counsel if they wish, and the proceedings are recorded by a court reporter. Attorneys who attend are advised that they can ask clarifying questions of the other side, but extensive cross-examination is not permitted. After both sides make presentations, the committee goes into executive session to determine whether unprofessional conduct has been established and, if so, what penalty is appropriate: censure; suspension...

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