Proposed amendment to the AAOS’ Standard of Professionalism (SOP)

Thursday, June 8, 2023

Dear COS member,

Your Colorado Orthopaedic Society’s Board of Directors met last month and discussed a proposed amendment to the AAOS’ Standard of Professionalism (SOP). After a thorough discussion the Board supports the spirit of the proposal while questions about the process remain outstanding. The Board would like to share the proposed amendment with you, as a member of COS, and requests your comments and/or questions so that our Councilors can appropriately represent our members’ position on this issue. As you have a few moments to review the information below, the Board of Directors asks that you share your view with us.

Initiation of the 2023 Proposed Amendment

to the Standards of Professionalism (SOP)

in Professional Relations

In 2022, the AAOS Board of Directors, in furtherance of the AAOS goals and to improve the culture of the orthopaedic profession, proposed a revision to the SOP on Professional Relationships to confirm that AAOS considers harassment, bullying and discrimination to be unprofessional conduct. The Board felt strongly that AAOS’s formal standards should be updated to meet the expectations of the public, patients, and members. At the Board of Director’s request, the COP proposed an amendment to the Professional Relationships SOP such that the terms “harassment bullying and discrimination” are considered unprofessional conduct that may be deemed a violation of the SOP. The proposed SOP is as follows [proposed addition in underlining]:

An orthopedic surgeon shall conduct himself or herself in a professional manner in interactions with colleagues or other healthcare professionals. This includes, but is not limited to, avoiding behavior that is harassing bullying or discriminatory.

The Judiciary Committee (JC), as the intermediary committee to review grievances prior to the Board’s consideration, also reviewed the proposed amendment and recommended that it be adopted. The proposed SOP amendment was submitted for consideration at 2022 Fall Meeting, and there, both the Board of Councilors (BOC), the Board of Specialty Societies (BOS) voted overwhelmingly to support it. At its December 2022 meeting, the Board of Directors also recommended adoption of the amendment. Prior to the 2023 Annual Meeting, the Fellowship was notified of matters that would be addressed during the Academy Business Meetings, including this proposed amendment. During the Open Hearing, AAOS Bylaws Committee heard from two AAOS Fellows who were opposed to and many more who were supportive of the proposed Amendment. Ultimately, the Bylaws Committee recommended that the proposed SOP amendment be adopted by the Fellowship on the ballot to be distributed the first week of May.

In sum, this proposed amendment has been extensively vetted by persons elected or appointed to lead the AAOS: the Board of Directors, the BOC, the BOS and 3 committees. Each governance unit recommends that the Fellowship vote in support of the proposed SOP amendment.

Background

The Professional Compliance Program was started in 2005 and has since received a total of 241 grievance filings. Only AAOS members may file a grievance and only AAOS members may be the subject of a grievance. No patient or public complaints are accepted. Less than 27% resulted in any compliance action by the Board of Directors. The majority – 56% - are withdrawn by the grievant, dismissed at the administrative level (i.e., matter is too old to be accepted, filed by or against a non-member) or at the COP’s prima facie review level. To pass the prima facie review, 2/3rds of the COP members must vote in favor of a hearing which tends to weed out grievances with no or low levels of evidence that an SOP violation occurred.

SOP on Professional Relationships, as currently written, will allow members to file a grievance for harassment, discrimination and bullying because it requires surgeons to conduct themselves in a professional manner in interactions with colleagues and other health care professionals. AAOS policies already identify harassment, discrimination and bullying as unprofessional conduct.

The proposed amendment is an effort to make it even clearer that AAOS does not condone unprofessional conduct.

Every grievance is subject to a detailed set of procedures, which include specific rules on what may be submitted to support a grievance, what will not be accepted (e.g., confidential records or unredacted medical records), etc.

Concerns about the logistics of the grievance and the hearing process can and should be addressed in the procedures, not in the SOP itself. Any updates to these procedures are reviewed by the Committee on Professionalism (COP) and Judiciary Committee (JC) and approved by the Board.

Each party is clearly on notice that the Grievant (the person filing the grievance) bears the burden of proving their claim. The procedures currently provide that “The Grievant bears the burden of proof and must submit written material in support of his/her Grievance Report as part of the grievance process.” Section VII.A.4. This same burden would apply to grievances involving harassment, discrimination, or bullying.

AAOS has no investigatory power, meaning it cannot conduct an investigation of any allegations raised – it relies solely on the parties’ submissions. If there is no evidence submitted to support the grievance, it would not survive the prima facie review by the Committee on Professionalism. Prima facie determinations are based on the written submissions of the parties (see Procedures Section VII.C.5) and require that there is “sufficient evidence to support the Grievant’s allegations of a violation of at least one [SOP].” (Section III.N, definition of prima facie). If no evidence or insufficient evidence is submitted, the grievance would not move forward to a hearing.

A Grievance alleging harassment, discrimination or bullying would be subject to the same burden of proof as every grievance filed with the Professional Compliance Program. Adding a new procedural step for only claims alleging discrimination, harassment or bullying would itself be discriminatory and would be inconsistent with the uniform due process rule already in place.

The Board, BOC, BOS, and the COP and JC have all reviewed and recommended that the amendment be adopted.

REAL EXAMPLE: Only 1 Professional Responsibility grievance ever passed prima facie review and reached the Board level. It involved an allegation that Member A acted unprofessionally in an exchange with Member B in the OR area. Member B and two colleagues, Members C & D, filed a grievance against the Member A. Based on initial written submissions, the COP found prima facie evidence sufficient to hold a grievance hearing. Prior to the grievance hearing, the parties submitted reports from the hospital review panel and state medical board, both of which found that no sanction against the Member A was warranted. Both parties testified and submitted statements from other witnesses; and Member B brought a witness who provided supporting testimony. Ultimately, the AAOS Board of Directors found that Member A’s conduct did not rise to the level of a violation of the SOPs on Professional Responsibility.

Concerns Raised About the Proposed Amendment of the SOP

Some AAOS Fellows have raised concerns about the proposed SOP which are addressed below.

Grievances should be subject to a clear process that requires a prior investigation and that provides safeguards against “he said/ she said” situations.

Grievances undergo a rigorous process based on 20 pages of procedures approved by the Board of Directors, which focus on providing both grievance parties with equal opportunities to present evidence and argue in support of his/her position. Grievances that are unsupported or lacking adequate evidence are dismissed at the preliminary review stage, called prima facie review. Grievances which pass prima facie are presented to a total of 3 groups, the COP, the JC, and the Board of Directors. Until/unless the Board of Directors has issued a formal compliance action, grievance matters are treated as highly confidential.

By the time the Board has considered the matter, more than 30 AAOS Fellows have reviewed and voted on a grievance. Only 27% of all filed grievances have resulted in any official compliance action, a strong testament to the stringent review process required under the PCP.

AAOS is a voluntary membership organization and as such, has no governmental or regulatory authority over its membership that would allow an investigation to be conducted. Each grievance is based solely on evidence provided by the parties, which may include the results of prior investigations, as well as other documentation and witness testimony. A grievance based solely on social media or “he said/she said” scenarios would not be accepted for a grievance hearing.

Allowing those wrongfully accused to undergo a public review creates litigation risks.

All grievances are handled in a confidential manner, unless and until the Board of Directors takes official compliance action. In fact, most grievances do not result in any official or public sanction and will never become public. Detailed steps were built into the process to eliminate complaints without merit.

The potential for litigation should not be a motivating factor in deciding whether to modify the existing SOP, which already permits grievances based on bullying, harassment, and discrimination. The risk of litigation arising from expert witness-based claims was known when the PCP was created, but Fellows believed strongly that a mechanism for AAOS to address member grievances was important enough to accept the risk and voted by a supermajority to adopt the program.

The grievance process was thoughtfully crafted from the outset. Additionally, the Board of Directors reviews the PCP every 2-3 years to evaluate its effectiveness and to consider modifications.

Stakeholders should have the opportunity to weigh in on the amendment.

As noted above, this proposed amendment has been extensively vetted by Fellows elected or appointed to lead the AAOS: the Board of Directors, the BOC, the BOS and 3 committees (COP, JC, and Bylaws Committee).

Thank you for taking your time to review this above information. Please share your thoughts with the COS Board of Directors via email at Suzanne.hamilton@comcast.net. Your COS Councilors will ensure your views are represented at the AAOS vote.