As the article [“Do We Need a New Standard of Proof in Medical Malpractice Cases?” Sept. 2014] points out, a higher standard of proof is a partial solution to the problem of marginal and spurious malpractice claims. However, as is also clearly shown, this standard can be completely subverted when “expert witnesses” ignore the standard and mislead juries by misinterpreting it in order to service their clients.
Explore This IssueACEP Now: Vol 33 – No 11 – November 2014
ACEP has crafted excellent expert witness policies and related ethics policies to address the problem of unethical testimony by members. However, the policies are not well-publicized and are largely ignored.
For example, renewal of membership used to carry with it an explicit promise to uphold the ethical standards of the College, including those related to expert witness testimony. Now the renewal document is simply a bill.
We have yet to provide any educational courses or materials for members on what constitutes ethical medical expert testimony. I have taught such courses in other medical specialty societies, which do deem it to be important. Our members have told us they would appreciate some guidance, and we know that many do testify.
Although we have excellent procedures in place to pursue unethical experts among our members and to clarify the actual standard of care, these are rarely utilized. (I am hopeful they may be in the cited case.)
But if the problem of unethical experts from within our own ranks were not enough, we in EM are uniquely vulnerable to “experts” from other specialties who believe that they know our standard from what they may remember in an ED rotation in medical school or residency, or from what they glean as consultants to us, or they simply testify convincingly that the standard in their own specialty is the same as in ours.
It is obvious that we could do more to address this problem than simply to rail against it.
–Louise B. Andrew, MD, JD, FACEP, FIFEM
Sidney, British Columbia, Canada