There was inconsistency in the preponderance of plaintiff versus defense testimony. Only 40% of respondents who provide testimony stated that they serve as defense witness more than 50% of the time (58% served the defense less than half the time), while 82% of those who provide testimony for plaintiffs reported doing so less than half the time. However, respondents were not given the option of 100% or 0%, and significantly fewer responded to the question about plaintiff testimony (289 vs. 372).

Perhaps tellingly, more than 50% of those who serve as experts do not keep any record of their cases (although this is required by federal courts), and less than 30% have preserved copies of their testimony.

More than half of those who provide expert witness testimony say that they do so because of an ethical duty to participate in the legal process, or to support the specialty or a colleague, but around 15% did so as an intellectual challenge or to earn nonpractice income. A total of 87% felt that ACEP should give members more guidance or education on the provision of expert testimony.

While almost a quarter of those who provide expert witness testimony reported that their related hourly compensation was approximately equal to their clinical compensation, nearly 60% reported their hourly compensation as an expert to be more. Over 60% reported that their compensation schedule as an expert varied depending on whether testimony was required. Nearly three quarters reported that the fact of their participation as an expert witness had never been made public in any way. More than half (54%) believed that their expert testimony had never been reviewed by anyone. No respondent reported that their testimony had been sanctioned by anyone. Nearly three quarters of those who testify had not preserved any copies of their testimony. Respondents were almost equally divided as to whether they have kept any record of their cases.

Other Legal Experience

A total of 68% of respondents had been subpoenaed to appear in court, and 56% had testified in court as a fact witness in a civil or criminal case; 21% have served as a forensic expert in a civil or criminal case, and 25% had never been subpoenaed. The survey explored other legal experiences of members. While 62.5% reported none of the following, 8.8% of respondents reported having experienced a contract dispute, and 7.6% reported an employment issue such as illegal termination or termination without due process, discrimination, harassment, or a hostile work environment. A licensing board action had been experienced by 5.6%, and an EMTALA violation or claim of violation by 3.9%. Some 5.7% had suffered a disability that affected practice, and 2% an injury or workers’ compensation issue. A total of 4.8% experienced an adverse peer review decision and 0.8% a Drug Enforcement Administration issue.

Awareness of ACEP Efforts

Members were asked about their awareness of available member resources in dealing with medical-legal issues. Although nearly 60% reported having experienced litigation stress, 87% had not sought any assistance for dealing with it. Over a third of those who had sought assistance did so from colleagues. The overwhelming majority were unaware of ACEP resources such as the peer-to-peer counseling mechanism, although 40% were aware of the document “So, You Have Been Sued!” Nearly two thirds were interested in CME on litigation stress management.