The following questions and answers provide information about the resolution of challenges under the Academy’s Code of Ethics. Comprehensive information about this process can be found in the Administrative Procedures of the Code of Ethics. No part of the following information should be construed as legal advice. If any portion of these FAQs conflict with the Administrative Procedures in any respect, the Administrative Procedures shall control.
How to Respond to a Challenge
Hearings and Related Topics
Legal Concerns and Questions
Expert Witness Testimony Cases
Responding to a Challenge
- Why is the Ethics Committee writing to me?
The Ethics Committee is obligated by virtue of the Academy’s Bylaws and the Administrative Procedures of the Code of Ethics to review every case containing sufficient information to warrant further investigation. The Ethics Committee reviews each case on its own merits with objectivity and fairness.
- Are some submissions dismissed without a full investigation?
Yes. An Academy member is notified only if a signed submission appears to contain sufficient information to warrant further investigation
- May I opt out of the process?
No. All ophthalmologists who are Fellows or Members of the Academy in any class of membership are required to comply with the Code’s Administrative Procedures; failure to cooperate with the Ethics Committee or the Board of Trustees in a proceeding on a challenge may be considered by the Committee and by the Board of Trustees according to the same procedures and with the same sanctions as failure to observe the Rules of Ethics.
- When I receive notice of a challenge, does it indicate that I have been found in violation of the Code?
No. The Ethics Committee follows the due process stipulated in the Code’s Administrative Procedures, including investigation of all relevant facts, convening a hearing if required by the circumstances and making a recommendation to the Academy Board of Trustees. Even if the Ethics Committee decides that a formal hearing must be held in a matter, it may end up dismissing the challenge after it has heard all of the evidence.
- If I receive notice of a challenge, how should I respond?
On receipt of a challenge, it is desirable for the challenged member to prepare an objective and detailed response to the noted concerns, attaching relevant documents including, but not limited to, those requested by the Ethics Committee.
- Should I contact the challenger?
The Ethics Committee encourages any communication that facilitates a good faith effort to resolve a challenge to the satisfaction of the submitter, the challenger, and the Committee.
- How does the Ethics Committee investigate matters involving subspecialty issues beyond the training and experience of each of the Committee’s members?
The Committee strives to include members whose experience covers each of the subspecialties. Whenever necessary, the Committee may request volunteer consultant review by a specialist with relevant expertise. The volunteer consultant reviewer is bound by a signed confidentiality agreement.
- How long does the process take?
Investigations are carried out by a volunteer Committee of up to nine members, assisted by the Academy’s legal counsel. As noted above, volunteer consultants may also be employed. The length of the investigation may vary depending on the complexity of the challenge and the schedules of our volunteer members. It should be understood that the process can be lengthy.
Hearings and Related Topics
- I have been offered an “Alternative Disposition” including sanctions instead of a hearing. Does this mean I have been found in violation of the Code without due process?
No. In cases when the challenged member and the Committee might be able to agree to a mutually acceptable resolution without a hearing, an Alternative Disposition may be offered. If the Alternative Disposition is unacceptable to either the challenged member or the Committee, the proposed Alternative Disposition is disregarded and a hearing is scheduled. Hearings may result in findings of violation or dismissal of the challenge.
- May I call witnesses to support my rebuttal of a challenge?
Witnesses may be called to assist in rebutting a challenge. Witnesses may participate in the hearing process in person or by telephone.
- The Ethics Committee has determined that I am in violation of the Code of Ethics and has recommended sanctions to the Academy’s Board of Trustees. Is there recourse to this determination?
The Ethics Committee’s determination and recommendation to the Board of Trustees may be appealed to the Board of Trustees as detailed in the Administrative Procedures.
- Should I retain legal counsel? Members may retain legal counsel at any time, and may especially wish to do so in preparation for an adjudicative hearing.
- Is an ethics case record discoverable in related civil litigation? In general, ethics investigations are considered peer review, and as such the files of the Ethics Committee may not be subject to discovery. Independent legal counsel is recommended for questions relating to parallel litigation.
Expert Witness Testimony Cases
- “My side” lost the malpractice case. Why am I being challenged for my testimony?
In challenges relating to expert witness testimony, the challenged member’s sworn testimony, as it appears in transcripts of depositions or from trial, is reviewed for compliance with Rule 16 of the Code of Ethics. The outcome of the underlying litigation is not relevant to a review of the challenged testimony. Adjudicative hearings in such cases do not “re-try” the underlying litigation.
- Alternative Disposition
A binding agreement between the Ethics Committee and the challenged member, the terms and conditions of which may include sanctions and restrictions, but shall in all cases include a written assurance by the challenged member that the possible non-observance has been terminated and will not recur. All Alternative Dispositions must be approved by the Academy’s Board of Trustees before they become effective.
Following notice of a determination by the Board of Trustees regarding non-observance of the Rules of Ethics and of imposition of a sanction, the Academy member may submit a written request for an appeal to the Board of Trustees.
- Challenger (a.k.a Submitter)
A person bringing a matter of ethics to the attention of the Committee. The challenger may be an Academy member or nonmember (e.g. a patient) but must be identified, except in cases where materials giving rise to the challenge are in the public domain (e.g. advertising).
A private adjudicative hearing in which the concerns of the Committee are addressed and the challenged member has the opportunity to rebut the concerns.
- Hearing Officer
A member of the Ethics Committee elected by the Committee who presides at the hearing and assures that the Code’s Administrative Procedures are followed.
A member of the Ethics Committee who is the primary investigator of the challenge who summarizes the Ethics Committee’s concerns at the hearing. The investigator does not participate in the deliberation process.
- Hearing Panel
Three or more members of the Ethics Committee who conduct the hearing and deliberate about an appropriate recommendation to the Board of Trustees. Hearing Panel members do not participate in the actual case investigation.
When the Ethics Committee recommends a determination by the Board of Trustees of nonobservance, the Committee also recommends imposition by the Board of Trustees of an appropriate sanction. Sanctions may include private or public reprimand, membership suspension, or membership termination.