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Nancy E. Epstein
  1. Professor of Clinical Neurosurgery, School of Medicine, State University of N.Y. at Stony Brook, New York, USA
  2. Chief of Neurosurgical Spine and Education, NYU Winthrop Hospital, NYU Winthrop NeuroScience, Mineola, New York, USA

Correspondence Address:
Nancy E. Epstein
Professor of Clinical Neurosurgery, School of Medicine, State University of N.Y. at Stony Brook, New York, USA
Chief of Neurosurgical Spine and Education, NYU Winthrop Hospital, NYU Winthrop NeuroScience, Mineola, New York, USA

DOI:10.4103/sni.sni_423_18

Copyright: © 2018 Surgical Neurology International This is an open access journal, and articles are distributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 License, which allows others to remix, tweak, and build upon the work non-commercially, as long as appropriate credit is given and the new creations are licensed under the identical terms.

How to cite this article: Epstein NE. The American Association of Neurological Surgeons (AANS) Suspends Surgeon for Arguing Against Unnecessarily Extensive Spine Surgery; Was this Appropriate?. Surg Neurol Int 27-Dec-2018;9:265

How to cite this URL: Epstein NE. The American Association of Neurological Surgeons (AANS) Suspends Surgeon for Arguing Against Unnecessarily Extensive Spine Surgery; Was this Appropriate?. Surg Neurol Int 27-Dec-2018;9:265. Available from: http://surgicalneurologyint.com/surgicalint-articles/9155/

Date of Submission
12-Dec-2018

Date of Acceptance
12-Dec-2018

Date of Web Publication
27-Dec-2018

In my last editorial, I opined that the American Association of Neurological Surgeons (AANS)’ Professional Conduct Committee (PCC) policies can have the effect of deterring surgeons from testifying for the patient/plaintiff.[ 1 ] It is my opinion that their proceedings resembled both a Kangaroo Court (i.e. gives the appearance of a legal proceeding, but they are perverted), and a Star Chamber (i.e. secret and arbitrary). Here I describe my own experience with the AANS’ PCC and Board of Directors, and offer my opinion as to what you should do if you have testified for a patient/plaintiff, and are accused of violating the AANS's Code of Ethics and Expert Witness Rules.

MY EXPERIENCE WITH THE AANS

In January 2017, I testified at trial, as the plaintiff's expert, that Dr. A, the defendant, should not have performed a right-sided minimally invasive transforaminal lumbar interbody fusion (MI TLIF) in this particular patient. She was a 65+-year old, hypertensive, osteopenic, inactive, obese female with mild radiculopathy attributed to mild/moderate L4-L5 spinal stenosis and grade I degenerative spondylolisthesis (no motion on dynamic X-rays). I opined Dr. A should have performed a simpler, less risky procedure, consisting either of a decompressive laminectomy or laminectomy with non-instrumented fusion. Notably, the operation was actually performed by his partner, Dr. B (his co-defendant), whom the patient only met the morning of surgery. Dr. B had neither spoken to the patient or previously examined her. The patient woke up with a new, and permanent, right-sided foot drop which the surgeons attributed to a stretch injury.

In August 2017, I was accused by Dr. A, the defendant in the law suit, of violating six of the AANS’ Code of Ethics and Expert Witness Rules. The PPC decided the grievance warranted a hearing.

I decided to fight these charges. First, in my response to the PCC, I detailed why these charges were without merit (see Appendices 1 and 2 below for more detail). Second, I brought a counter complaint/grievance against the surgeon, Dr. A, who had filed the complaint/grievance against me. My complaint against Dr. A included evidence that there was: inadequate informed consent; evidence of double-billing as co-surgeons to Medicare; and that the actual operation was performed by Dr. A's partner, a neurosurgeon, whom the patient only met the day of surgery, resulting in a new profound and permanent foot drop.

The PCC Hearing in April 2018

As part of my testimony in support of my grievance against Dr. A, I brought the patient and her sister to testify at the PCC meeting in April 2018. By the way, I believe this set a precedent that I strongly suggest others should follow.

Without going into further detail here, which can be found in Appendices 1 and 2, the PCC decided that I violated two of the Expert Witness Rules, and recommended suspension for six months. I contended, and still contend, that the evidence did not support either of these so-called violations- more about this below. On the other hand, the PCC dismissed the entire counter grievance I brought against Dr. A.

My Appeal to the AANS Board of Directors

On Nov. 16, 2018, I appeared before the AANS’ Board of Directors and argued my case. Appendix 1 is the text of my presentation to the Board; and, Appendix 2 is my letter submitted to the Board in September, 2018 for their consideration at the Nov. 16, 2018 “hearing”. Names were redacted in both Appendices.

The AANS Board of Directors’ Decision

Recently, I received the AANS Board's decision. First, the Board adopted the recommendation of the PCC re 6 months suspension by an 11-1 vote. I asked the AANS counsel for the name of the person who voted against the PCC recommendation. I was told – you guessed it—IT IS SECRET, in contrast to routine court proceedings. Second, they completely dismissed my counter grievance against Dr. A. In my opinion, the AANS appears to have no problem with Dr. A's practices: lack of informed consent; double billing as co-surgeons to Medicare; and having a surgeon appear the morning of surgery who never saw or examined the patient previously, and performed an unnecessarily complex procedure in this patient.

Lessons Learned

First, in my personal experience, the AANS, my organization for over 34 years, protected the defendant neurosurgeons, and attacked the neurosurgeon (myself) who testified for the patients/plaintiff. In my testimony, I had fully disclosed all of the relevant facts from my review of the literature in this case. (See also my editorial about why I testify for the plaintiff.[ 2 ]) In short, I had not violated any of the AANS Expert Witness Rules or Code of Ethics, and further, had been allowed by the judge based on the 702 Federal Rules of Evidence, to express my opinion (see Appendix 1 and 2 ). Rather, in my opinion, Dr. A had violated multiple AANS Expert Witness Rules and Code of Ethics, but yet the PCC found against me, and not him.

Second, my initial impression that this was a Star Chamber was truer than I had thought. The PCC hearing was secret and closed. I was not allowed to bring anyone to witness the entire proceedings, except a lawyer—which I chose not to retain for this purpose. The transcript of the proceedings was made available to me, Dr. A, the members of the Board and PPC, but to no one else, -- not even other AANS members. In addition, I was told by the AANS legal counsel, via emails, that members did not have access to information such as the number of past cases heard by the PCC, the nature of the grievances, or the outcomes, etc. Again, like a Star Chamber, --secret, --secret, --secret. In addition, I requested information about the financial disclosures concerning ties to industry of the members of the AANS’ PCC and Board. The AANS counsel informed me, via email, that this information was also not available to me. As you will see if you read Appendix 1 , I ended my statement to the Board by asking a member of the Board, Dr. X, to recuse himself. He had trained Dr. A! And, had received millions of dollars from a prominent instrument company! That company, in fact, manufactures the TLIF, which I testified, should not have been used in this case. Furthermore, in my presentation to the PCC in April 2018, I had previously pointed out that this member of the Board had a clear conflict of interest due to the above. Like a Star Chamber, but unlike a court of law, apparently no one, including the AANS legal counsel, asked this person to recuse himself. In response to my charge of “conflict of interest”, Dr. X said he would recuse himself and not vote; he did not, however, leave the room.

Finally, I would not advise anyone to go through what I faced over the last 15 months. Untold hours were spent preparing: 1. the response to Dr. A's charges; 2. the counter grievance against Dr. A; 3. my presentation to the PCC in my defense; 4. my presentation to the PCC re charges against Dr. A; 5. the appeal letter to the Board; and 6. my presentation to the Board. (The last two can be found as Appendices 1 and 2.) I decided to do essentially all the work myself with help from my husband, a professor at Columbia University with over 30 years of experience on boards of non-profit organizations (e.g. Association for Research in Vision and Ophthalmology, Brown University, Harry Frank Guggenheim Foundation, Smith College). Even so, initially we spent about 20K on legal advice to understand the AANS procedures, etc., Had we used a lawyer throughout, the bill would likely have exceeded 100K.

Further, in addition to the lost time and money, I was subjected to abusive and hostile questioning at the PCC hearing. In fact, even when questioned about my counter grievance, the PCC attacked me, instead of questioning Dr. A's behavior.

Additional Background

The PCC appears to only consider grievances that are brought by a member. Here, Dr. A, attacked me, someone equipped to fight back. That is, I have a detailed grasp of the relevant evidence-based medical literature, and extensive credentials as a spine surgeon [in my case, over 300 peer-reviewed publications; Clinical Professor of Neurological Surgery at Stony Brook; and on the editorial boards of Spine (since 1990), Journal Spinal Disorders Techniques (since 1990), now Clinical Spine Surgery, The Spine Journal (since 2001); and Editor-in-Chief of Surgical Neurology International (since 2017)].

Should You Do if a Grievance Is Filed Against You?

Ignore the AANS and PCC completely and let them do what they want:

So what if they censure, suspend or expel you? In fact, it is not even clear who will know. Initially, I couldn’t find notifications even after searching the Internet. I finally learned it is published at AANS Neurosurgeon (http://aansneurosurgeon.org/). I had never read this before, have you?

Resign from the AANS?

I don’t need the AANS? Do you? In fact, I intend to resign once this issue is resolved. I do not want to be a member of a society whose policies in regard to legal testimony I cannot support.

Sue the AANS?

You might ask, why not sue the AANS? First, it is not easy to prove damages. Further, the courts so far have given wide latitude to professional organizations as indicated by the opinions in two failed suits against the AANS in which surgeons were respectively suspended or censured. See [Austin v American Association of Neurological Surgeons, 253 F3d 967, 968 (7th Cir 2001)] and [Barrash v. American Association of Neurological Surgeons, F.3d (5th Cir. 2016), 2016 WL 37413].

Final Thoughts

I would welcome the AANS’ response to this Editorial and others’ I have published in Surgical Neurology International, and welcome readers’ comments. The purpose is to shine the spotlight on the AANS’ policies and procedures regarding expert testimony in malpractice cases, and open them up to transparent discussion. By the way, the membership of the PCC and Board can be found at www.aans.org/en/About-Us/Governance/AANS-Committees.

As I said to the AANS at the Nov. 16th meeting, this is no longer about me. I told them, “In fact, this is now about YOU, and it is now about what the AANS stands for. What is the message YOU want to send regarding the purpose of the AANS Expert Witness Rules and Code of Ethics? Is it designed to improve patient care or to, simply, intimidate neurosurgeons so as to discourage testimony against other neurosurgeons?”

References

1. Epstein NE.editors. Editorial: It Appears the American Association of Neurological Surgeons (AANS) Seeks to Limit Members from Testifying for Patients/Plaintiffs Through Proceedings Resembling a Kangaroo Court and/or Star Chamber. Surgical Neurology Int; 2018. p.

2. Epstein NE.editors. Editorial: Why I Testify For Some Patients/Plaintiffs, and Aganst Some Doctors/Defendants. Surgical Neurology Int; 2018. p.

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