PROCEDURAL GUIDELINES FOR ETHICS COMPLAINTS AGAINST AATS MEMBERS
1. Submission and Initial Review of Complaints
1.1 Complaints alleging unethical behavior on the part of members of the American Association for Thoracic Surgery (hereinafter "AATS") shall be submitted in a timely manner in writing and addressed to the AATS Ethics Committee (hereinafter the "Committee") at AATS headquarters.
1.2 Complaints may be initiated by any physician or the Committee. The Committee may initiate a complaint based upon the findings of another professional organization or a final order issued by a medical licensing authority. Physicians initiating complaints shall provide supporting records and other evidence to substantiate the allegations set forth in the complaint. Any such materials, if related to a patient, must be de-identified and otherwise submitted in accordance with the applicable privacy regulations issued under the Health Insurance Portability and Accountability Act of 1996. Complaints concerning expert testimony or criminal acts may be submitted only after resolution of the legal proceedings related to the event in question. In case of a trial, resolution of the proceedings need occur only at the trial court level, irrespective of any pending appeals. Once submitted, a complaint cannot be withdrawn unilaterally by the complainant in view of AATS’s independent interest in the ethical conduct of its members.
1.3 The initial complaint, with supporting documentation, will be reviewed by the Chair of the Committee and the AATS Executive Director in consultation with AATS legal counsel. The initial review will determine only whether the complaint is consistent with these Guidelines and any other applicable AATS By-laws, policies, or guidelines, and whether the alleged misconduct, if proven, may constitute a violation of the AATS By-laws, Code of Ethics or other rules, policies or regulations of AATS. If these conditions are not met or the complaint is otherwise outside the purview of the Ethics Committee, only the complainant will be notified that the complaint does not warrant further review. A decision that the complaint does not warrant further review is final.
2. Procedure in Cases of a Prior Determination
2.1 Complaints may be based on disciplinary action previously taken against a member by a medical licensing authority, court, or other supervisory governmental agency. In such cases, the Committee will accept as factual the findings of the court or other governmental authority that has made an adjudication relevant to the professional fitness of the member, and the Committee’s investigation shall be limited to an inquiry into whether the conduct that led to the previous disciplinary action warrants disciplinary action by the Committee.
2.2 If a matter concerns disciplinary action previously taken by a court or other governmental authority, the Chair of the Committee will notify the affected member by registered or certified mail or by a commercial delivery service at the last address known to AATS that a disciplinary action by AATS may be warranted. The notice shall set forth the By-law and/or Code of Ethics provision(s) which the member is charged with violating, and shall include a copy of the AATS By-laws, the Code of Ethics and these Guidelines. The respondent will be asked to reply to the notification in writing. S/he will be further advised that the disciplinary proceedings are confidential until final disposition of the matter and that s/he has the right to request a hearing before the Committee within thirty (30) days after receipt of the notice.
3. Procedure in Cases without Prior Determination
3.1 In cases in which the complaint is not based on prior action of a court or other governmental authority, including cases in which the complaint is based on the findings of another professional organization, if the conditions described in Section 1.3 are met, the complainant and the member accused of unethical behavior (the "respondent") will be notified by the Chair of the Committee that the complaint warrants further investigation. The respondent will be notified by registered or certified mail or by a commercial delivery service at the last address known to AATS. The notification to the respondent shall set forth the By-law and/or Code of Ethics provision(s) which the respondent is charged with violating, and shall include a copy of the letter of complaint, the AATS By-laws, the Code of Ethics, and these Guidelines. The complainant and respondent will also be advised that the disciplinary proceedings are confidential until the final disposition of the matter. The respondent will be asked to reply in writing within thirty (30) days after receiving notification of a complaint, unless extenuating circumstances warrant a delay (the duration of which delay, if any, will be determined at the sole discretion of the Chair of the Committee).
3.2 The Chair of the Committee will appoint a "Preliminary Review Panel" (hereinafter referred to as "the Panel") composed of three members of AATS, at least one of whom is familiar with the technical subject matter of the complaint and at least one of whom is a member of the Committee. Members of the Panel shall not include any member who is in direct economic competition with the respondent or who has any other conflict of interest. Members of the Panel, in consultation with the Chair of the Committee, the AATS Executive Director, and AATS legal counsel, will convene within a reasonable period of time after they have received the complaint and the respondent’s written reply, if any. The Panel will determine by majority vote whether the documents demonstrate that the respondent may have violated the AATS By-laws, Code of Ethics, or AATS rules and policies, or otherwise engaged in conduct inconsistent with the purposes of AATS and, if so, shall make a recommendation to the Ethics Committee of the appropriate disciplinary action.
3.3 A decision of the Panel that there is no basis for disciplinary action shall be final, and the complainant and the respondent shall be notified in writing of such a decision. If the Panel recommends disciplinary action, the Chair of the Committee will notify the respondent by registered or certified mail or by a commercial delivery service at the last address known to the AATS of such decision and that s/he has the right to request a hearing before the full Committee within thirty (30) days after receipt of the notice. This notification shall include a summary of the Panel’s findings and recommendation for possible disciplinary action.
4. Procedure after Notice of Hearing
4.1 If the respondent does not request a hearing in writing within thirty (30) days of receiving notification under Section 2.2 above or a Panel’s recommendation under Section 3.3 above, s/he will be deemed to have waived the right to a hearing, and the Committee will make its decision based on the evidence before it and the findings and recommendations of the Preliminary Review Panel, if one has been convened under Section 3.2.
4.2 If a timely request for a hearing is submitted, the Committee will send the respondent by registered or certified mail or by a commercial delivery service a notification stating the place, date, and time of the hearing. No hearing will be scheduled less than thirty (30) days after the date of such notice. The Chair of the Committee shall ensure that each member of the Committee receives all pertinent documents before the hearing. Should the respondent desire to submit additional information and/or documents related to the complaint, such information and/or documents must be submitted to the Chair of the Committee no later than ten (10) business days in advance of the hearing. Witnesses may be permitted when, in the discretion of the Chair of the Committee, such participation may be necessary to the proceedings.
4.3 The Chair of the Committee will chair the hearing. Members of the Committee, including the Chair, who are in direct economic competition with the respondent or have any other conflict of interest involving the respondent may not be present or have any other involvement in the hearing and the subsequent executive session. Formal legal rules of evidence will not apply, but the Chair may exclude discussion that is not relevant.
4.4 The respondent may attend the hearing with legal counsel. During the hearing, the respondent’s legal counsel will be permitted to ask questions, but will not be permitted to make presentations. The respondent may make a presentation not to exceed forty-five (45) minutes. Any Committee member may ask questions of the respondent and/or his or her legal counsel. At the Chair’s discretion, the complainant may be invited to participate in the hearing and may be asked to respond to questions from the Committee, but the complainant’s attendance is not mandatory.
4.5 Professional recording of the hearing will be the responsibility of AATS. Respondents and complainants are responsible for their own expenses, including those of legal counsel. A copy of the transcript will be provided to the respondent upon request after the hearing. If the respondent fails to appear at a duly scheduled hearing for any reason, the Committee may still proceed at its discretion and shall make its decision based on the evidence before it and, in matters not based on prior action of a court or governmental authority, the findings and recommendations of the Preliminary Review Panel. In the alternative, the Chair of the Committee may reschedule the hearing time and date if, in the sole judgment of the Chair of the Committee, good cause is shown.
4.6 After the hearing, the members of the Committee, with AATS legal counsel and AATS staff in attendance, will go into executive session, which will not be recorded, will discuss the facts and issues, and will make a decision by majority vote of only the members of the Committee, under sealed ballot, as to whether the respondent has violated the AATS By-Laws, the Code of Ethics, or AATS rules and policies, or otherwise engaged in conduct inconsistent with the purposes of AATS. If no violation is found, the Committee shall close the matter, which decision shall be final. If a violation is found, the Committee shall determine the appropriate discipline, which may include the following: a) admonition, b) censure, c) probation, d) suspension, or e) expulsion, as defined in the AATS Disciplinary Options policy; this vote shall also be taken under sealed ballot.
4.7 No disciplinary action of the Committee will be deemed final until reviewed for procedural fairness and approved by the AATS Executive Committee. Within thirty (30) days after the date of any such review, the Committee’s written findings and decision, with any modifications by the Executive Committee included, will be sent to both sides of the dispute.
4.8 An accused member may not escape this process by resigning membership in the Association. The AATS Council may refuse to accept a member’s resignation so long as an ethics investigation or proceeding is pending (see AATS Bylaws, Article III, Section 8).
4.9 Admonition and censure will not be reported to authorities outside AATS, but AATS will report final decisions resulting in probation, suspension, and expulsion to the AATS membership annually by personal and confidential letter. AATS may also publish a notice of final decisions in the AATS News and/or on the AATS Website, and may notify the National Practitioner Data Bank and relevant state licensing authorities. The notice of these decisions in AATS publications and other notifications will contain a brief description of each disciplinary action, accompanied by the name of the disciplined member in cases of probation, suspension, and expulsion. The name of the disciplined member will not be published in cases of admonition or censure