In our 2010 all College Medical Legal survey, we learned that many ACEP members participate in the legal system as expert witnesses. About a third of our respondents reported having served as an expert witness in a malpractice case, with 10% having served three or more times.

There was inconsistency in the preponderance of plaintiff versus defense testimony reported. Significantly fewer responded to the question about plaintiff testimony, but fewer than half claimed that they testify solely on behalf of defendants. When I speak to people about expert testimony, they are often quick to announce that they testify solely on behalf of defendants, or for plaintiffs, “only in meritorious cases.”

They seem surprised when I suggest that in order to be considered nonpartisan, they should make themselves equally available to plaintiffs and defendants for review of cases.

Almost 90% of survey respondents felt that ACEP should give more guidance or education on the provision of expert testimony. So far as I am aware, ACEP has never provided any formal education on how to be an ethical expert witness. Although we have developed excellent guidelines on expert testimony, a statement of adherence to those guidelines that is a requirement of membership application or renewal, and two policies for review of expert testimony, our survey revealed that most members are still not aware of any of these.

The last article in this series referred to the policies but did not provide links.

So, in the interest of education, our Expert Witness Guidelines for the specialty of Emergency Medicine (www.acep.org/Clinical—Practice-Management/Expert-Witness-Guidelines-for-the-Specialty-of-Emergency-Medicine/) require that in order to qualify as an expert witness in emergency medicine, a physician should be currently licensed in a state, territory, or area constituting legal jurisdiction of the United States as a doctor of medicine or osteopathic medicine and be certified by a recognized certifying body in emergency medicine.

Further, our guidelines stipulate that the potential expert witness should be in the active clinical practice of emergency medicine for three years immediately preceding the date of the event giving rise to the case (e.g. neither newly graduated nor retired nor pursuing a second career as an expert witness).

Further, an expert witness should possess current experience and ongoing knowledge in the area in which he or she is asked to testify. In other words, an expert witness in emergency medicine should not be testifying as to the standard of care in a case involving another specialty or profession unless that witness is also qualified and currently practicing in that specialty or profession.