An emergency physician receives a call from an attorney, who asks, “Could you review a case for us? The pay is excellent, and it will only take a few hours of your time.” What factors should the emergency physician consider regarding this task? What responsibilities does the emergency physician have to the plaintiff, the defendant, society, the specialty of emergency medicine, and himself or herself?

Introduction

A hostile medical malpractice environment continues to affect the practice of medicine nationwide. According to the advocacy group Doctors for Medical Liability Reform, medical liability costs are rising more rapidly than overall medical costs. For example, from 1975 to 2000, medical costs rose 449%; yet medical liability costs rose by 1,642%. Forty-four states are either in a medical liability crisis or are experiencing serious liability problems.¹

Today’s medical liability environment affects the practice of medicine in many ways. Physicians in several specialties frequently face lawsuits. For example, neurosurgeons practicing in the United States today are sued about every 2 years, and about one-third of U.S. orthopedists, obstetricians, trauma surgeons, emergency physicians, and plastic surgeons can expect to be sued in a given year.¹

Because medical malpractice lawsuits have become so commonplace, physicians frequently alter their practice of medicine in attempts to reduce their malpractice risk. Such defensive practice often results in unnecessary testing and increased costs of health care.

Lawyers, judges, and juries usually lack medical knowledge, and expert witnesses are often used to assist in clarifying the medical issues and determining the standard of care in a specific case. The expert witness should function as an agent of the court, not of a particular party.2 Requirements for expert witnesses are established by states and may include board certification, specialty training, or a minimum number of years in practice.

The American College of Emergency Physicians (ACEP) and the American Medical Association (AMA) have also adopted policies on expert witness testimony, which are available on their respective Web sites.

Responsibilities of the Expert Witness

Some emergency physicians find the malpractice judicial environment distasteful, and thus shy away from any opportunity to participate. Although there is no strict duty to accept an invitation to serve as an expert witness, physicians who do take on this role may make a valuable contribution to the administration of justice.

Expert witnesses have a responsibility to review the facts of the case carefully and thoroughly, to evaluate the case in the light of their experience and of the state of current medical knowledge, and to provide testimony that is truthful and unbiased. Expert witnesses should not agree to terms that require a specific opinion.