n October 2003, the ASA House of Delegates voted to adopt and finance a program for the peer review, on complaint, of expert medical testimony.

Although the first complaint has yet to be filed, that is only because of restrictions in the program on the testimony that may be subjected to review, not because of a lack of interest on the part of possible complainants. In the past nine months, I have talked with perhaps 10 ASA members who were seriously interested in filing complaints, but in each case, the testimony was either given before the effective date of the program or the judicial proceeding in which the testimony occurred has not yet been completed. 

I predicted last year that the Society would not deal with the first of these expert witness proceedings before 2005, and I think that is the way it is going to turn out.

The purpose of this article, however, is not to discuss the expert testimony program but something closely related. Few ASA members are aware that two years ago, the ASA House of Delegates radically revised the provisions of our bylaws under which sanctions could be imposed on ASA members for certain specified actions other than giving irresponsible expert testimony. These actions include, among others, violations of ASA’s ethical standards (by the terms of the bylaws, these are binding on all ASA members), loss of medical license, conviction of a crime involving moral turpitude or conduct causing the Society or the specialty to be held in disrepute.

The new procedures for possible sanctioning were carefully drawn to make sure that they afforded a fair hearing for any accused ASA member. They probably go beyond what the law actually requires in this regard: the federal appeals court upholding the neurosurgeons’ expert witness testimony review program two years ago confirmed that since membership in a medical association is not essential to the ability to practice, the accused does not enjoy due process protections. A 2001 Texas appellate decision, in a case involving the Texas Medical Association, reached the same conclusion. Rather, the accused member must rely basically on the law of contracts and defamation, that is, libel and slander, for protection against allegedly improper association action.

Just as important, perhaps, the new procedures will often fit within the requirements of the federal Health Care Quality Improvement Act, which grants immunity to those participating in peer-review proceedings, including those conducted by a professional association. This means that an ASA member is free to file an ethics violation complaint under the procedures without fear that he or she will be exposed, for example, to a libel suit by the respondent.

The new ASA procedures replaced some fairly haphazard and confusing sanctioning provisions that had been in the ASA Bylaws for many, many years. Not once in all those years, however, had the ASA Judicial Council been convened to hear a complaint against a member. Especially in the last two decades, ASA has justifiably prided itself as a leader in the area of patient safety and yet never had anyone complain to ASA about the negligent or unethical conduct of another member, to the detriment of a patient’s interest. 

For some time, I attributed this lack of internal policing activity to the fact that the bylaw provisions — even though they were drafted by a member of my former law firm — were essentially incomprehensible. I was thus pleased by the fact that the House in October 2002 approved a far more comprehensible set of procedures, laying out specifically which conduct would be grounds for sanctions, what the sanctions were and how a sanctioning proceeding was to be conducted and by whom. “If you build it, they will come,” I thought.

Well, it is a fair statement that, except with respect to expert testimony, my telephone has not been ringing off the hook with calls from members wishing to invoke the Society’s new sanctioning procedures. 

So I decided to do some checking with lawyers of other medical associations. I found that although most of their associations maintained a code of ethics and procedures for sanctioning members, almost none of them could remember such a proceeding having been brought or pursued over the past five years.

I found the situation somewhat different with the American Medical Association (AMA). According to a recent report on professional self-regulation by its Council on Ethical and Judicial Affairs, during a 14-month period that ended in April 2003, AMA revoked the membership of five physicians, suspended two others and censured or admonished three more. 

It appears that AMA acts, however, only when it learns of final adverse action by a court, medical board or other regulatory body against one of its members or membership applicants. In essence the only decision it makes is how bad the AMA punishment, if any, should be imposed after a physician is found “guilty” of inappropriate conduct by some governmental entity.

One of the things I learned from my survey of medical association counsel is that although the associations rarely undertake sanctioning proceedings of their own, they will sometimes refer apparently unethical behavior to the state medical board. There are no data to indicate what percentage of the 3,000 cases annually of adverse licensure action by medical boards resulted from medical association referrals, but I suspect that it is relatively small. 

At least one court has acknowledged the appropriateness of reliance on an association code of ethics as a basis for governmental disciplinary action; four years ago, however, the Federation of State Medical Boards cautioned its members against over-reliance on these ethical codes, noting that they were subject to amendment.

So the question arises: what is the point of having a code of ethics if you are not going to enforce it? Well, certainly one can argue that it is a standard for guidance of right-thinking, ethical practitioners: one commentator recently said that given the importance of professional esteem to physicians and the benefits that flow from enhanced professional reputation, professional norms should have a powerful effect on physician behavior. 

One also can argue that the public has a right to expect physicians to conform to their association’s code of ethics: an Illinois court expressly acknowledged that right in a case involving the confidentiality of physician-patient communications. Failure to abide by a code of ethics can thus sometimes form the basis for liability in civil court proceedings, without the association lifting a hand.

But is it enough for a medical association to adopt a code of ethics and then rely upon the medical boards or the courts to enforce it? Do not the associations, once having adopted those standards, have an obligation themselves to police them?

So far the record suggests that the associations have answered “no.” The federal Health Care Quality Improvement Act requires that professional associations report all expulsions and suspensions to the National Practitioner Data Bank; since creation of the Bank in 1990, only 387 such actions had been reported by physician associations by the end of 2002, an average of 32 a year.

These numbers include, of course, not only national and state associations but city and county associations as well. They also are not limited to those proceedings that were initiated by an association on its own, as distinct from mere follow-up to a judicial or regulatory proceeding, involving loss of medical license or criminal conviction, adverse to one of the association’s members.

I personally believe this is not a record of which organized medicine should be particularly proud. I well recognize that there is significant time, expense and perhaps unpleasantness involved in virtually every sanctioning procedure, but I ask how medicine can at the same time condone continued good membership status for, say, a physician who has been found culpable of gross negligence or an egregious ethical violation. The rap on physicians is that they are loath to turn in one of their colleagues, and the record seems to suggest that there is truth to this allegation.

So I ask readers of this article to think about this: ASA enjoys a well-deserved reputation as the leader in organized medicine in matters related to patient safety. It has spent more than $20 million on developing practice parameters, analyzing closed claims and financing the production of safety-oriented media. With this record, why should it not also aspire to a leadership role in the policing of its specialty rather than leaving the task to the courts and regulatory agencies? 

In fairness I should close with a footnote: About a month ago, a complaint under the new procedures, alleging violation of the ASA Code of Ethics by an ASA member, was filed with the Administrative Council. It would not be appropriate for me to discuss the details of the filing, but what I can say is that this initiative will put the efficacy and fairness of the new procedures to their first test. If both are established, then perhaps ASA will have taken a first step toward further vindication of its leadership role with respect to patient safety.

Michael Scott, J.D., oversees the federal, state, regulatory, lobbying and legal activities in the ASA Washington Office. He will retire on January 1, 2005.