The following questions and answers are intended to provide information about 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.
Responding to a Challenge
Why is the Ethics Committee writing to me?
The Ethics Committee is obligated by the American Academy of Ophthalmology’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 investigation can only proceed if a signed submission appears to contain sufficient information to warrant further investigation. In addition, if the submitter refuses to be identified or if the challenged physician is not a member of the Academy, the challenge is dismissed.
May I opt out of the inquiry process?
No. All Fellows or Members of the Academy in any class of membership are required to comply with the Administrative Procedures of the Code of Ethics. Failure to do so may be considered the same as failure to observe the Rules of Ethics by both the Ethics Committee and the Board of Trustees.
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 due process as 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 an administrative hearing must be held in a matter, the Committee may ultimately dismiss the challenge after hearing all of the evidence.
If I receive notice of a challenge, how should I respond?
On receipt of a notice of a challenge, the challenged member should prepare an objective and detailed response to the noted concerns, attaching relevant documents including those requested by the Ethics Committee.
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, in-person hearing.
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 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 assist in an investigation. 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.
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. Note: The Ethics Committee will not proceed with any investigation until legal cases are resolved and finished.
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 either 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
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 testimony, 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. Ethics investigations and administrative hearings into Rule 16 challenges will not “re-try” the merits of the lawsuit but will only examine the challenged testimony for complaince with Rule 16. Learn more about Expert Witness Testimony.
Definitions
Alternative Disposition:
A binding agreement between the Ethics Committee and the challenged member. The terms and conditions of the Alternative Disposition may include sanctions and restrictions, but will, in all cases, always require written assurance by the challenged member that the challenged actions have terminated and will not recur. All Alternative Dispositions must be approved by the Academy’s Board of Trustees before they become effective.
Appeal:
Following notice of a determination by the Board of Trustees regarding a violation 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 potential violation of the Academy's Code of Ethics to the attention of the Ethics Committee. The challenger may be an Academy member or nonmember (e.g. a patient, a family member or another interested party). The submitter WILL be identified to the challenged member in all cases except when material/issues being investigated are found in the public domain (e.g. advertising, publicized lawsuits, newspaper, or internet articles).
Hearing:
A private administrative, in-person proceeding in which the concerns of the Ethics 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 to preside at the hearing and assure that the Administrative Procedures of the Academy's Code of Ethics are properly followed.
Investigator:
A member of the Ethics Committee whose job is to act as the primary investigator of the challenge. The role of the Investigator is to summarize the issues and concerns of the Ethics Committee to the challenged member. 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.
Sanctions:
When the Ethics Committee determines that a violation of the Academy's Code of Ethics has occurred, this finding is submitted to the Academy Board of Trustees. In addition, the Ethics Committee will recommend an appropriate sanction of the challenged member to the Board of Trustees. Sanctions may include private or public reprimand, suspension of membership, or even termination of Academy membership. Although, the Ethics Committee makes the recommendation for the sanction, only the Board of Trustees can impose the sanction and is the final arbitrator of all disputes with regard to the Code of Ethics.
Revised July 8, 2019.