The lecture was titled, “So you’ve been sued.” You’ve seen that title. Maybe you’ve heard the lecture. It’s all about the experience that starts with the certified letter telling you that a patient you’ve taken care of has consulted an attorney and filed a claim of medical negligence against you. It can be a painful, embittering experience. That lecture can tell you a lot about what to expect and how to cope with it.
Explore This IssueACEP News: Vol 28 – No 09 – September 2009
The subject of this article is one little slice of that ordeal. You’re being accused of having harmed a patient by practicing medicine in a manner that failed to meet the standard of care. And who is saying such a terrible thing about you? A patient you tried to help . . . bad enough. But the motivations are understood. If there was a bad outcome, it must be somebody’s fault. The patient is angry, and you are as good a target as anyone else. A plaintiff’s attorney . . . well, you think, a lawyer will say anything about anyone, that’s what he gets paid to do, nothing personal. And a colleague. That’s right: Another doctor is saying you were negligent, that you did not do what a careful practitioner should have done in the evaluation and treatment of the patient according to generally accepted standards. And this colleague is a fellow emergency physician—in fact, a member of the American College of Emergency Physicians. Were he to have reviewed the facts of the case in a fair and objective manner, he could never have said such a thing about you. Could he?
So you’ve been slimed.
A physician serving as an expert witness may express his opinion about another physician’s conduct in a letter certifying that the plaintiff’s case has merit or in sworn testimony in deposition or at trial. ACEP’s commitment to objective, truthful, and impartial testimony related to patient care, whether offered on behalf of the defendant or plaintiff, resulted in its development of guidelines that its members are expected to follow when they serve as expert witnesses in medical malpractice cases. Essential elements of these guidelines include the following:
- The expert witness should not provide expert medical testimony that is false, misleading, or without medical foundation.
- After that process, the expert’s opinion should reflect the state of medical knowledge at the time of the incident.
- The expert witness should review the medical facts in a thorough, fair, and objective manner and should not exclude any relevant information to create a view favoring the plaintiff or the defendant.
The expectation that members of ACEP will adhere to these guidelines implies that there can be adverse consequences for a member who does not: Misconduct as an expert, including the provision of false, fraudulent, or misleading testimony, may expose the physician to disciplinary action. Additional guidance is provided in ACEP’s Code of Ethics for Emergency Physicians in the section entitled “Relationships With the Legal System as an Expert Witness,” available at www.acep.org.