Any compensation that expert witnesses receive for their review and testimony should be fair compensation for the time they spend, not dependent on the opinion they deliver. Importantly, expert witnesses must be in the “active clinical practice of emergency medicine for 3 years immediately before the date of the incident,” according to ACEP’s policy and Code of Ethics. Thus, expert witness testimony should not be a full-time endeavor, but a function of a clinician emergency physician who can attest to the standard of care.
Explore This IssueACEP News: Vol 29 – No 02 – February 2010
Fairness to all in the judicial system, including both plaintiff and defendant, is dependent on unbiased expert opinion. Honest, unbiased experts in emergency medicine are essential to the integrity of the legal process and to just outcomes of these legal disputes. By helping to define the proper standard of care in the practice of emergency medicine, expert witnesses also contribute to the welfare of future emergency patients. ACEP has developed an “Expert Witness Reaffirmation” (available online), a document that expert witnesses may sign voluntarily, pledging to uphold professional principles of expert witness testimony.
Expert witness testimony has important consequences, not only for the case at hand, but also for the reputation of the specialty of emergency medicine. Emergency physicians who serve as ethical, fair, and rational expert witnesses enhance the public opinion of the specialty of emergency medicine.
Finally, and perhaps most importantly, emergency physician expert witnesses have a duty to themselves to act fairly, with integrity, and with expertise. In this way, expert witnesses demonstrate their commitment to truthfulness, to professionalism, and to the best interests of patients and fellow physicians.
Ramifications of Unethical Practices
Significant ramifications may result from unethical expert witness testimony. Most importantly, this represents an abuse of position and a threat to the integrity of the judicial system. Patients, families, and physician colleagues may be harmed by unethical expert witness testimony. ACEP has two ways to evaluate if the expert witness testimony is possibly unethical:
- Charges of Ethical Violations and Other Misconduct. When expert witness testimony is considered to be in violation of ACEP policy, a charge may be brought against the expert witness. ACEP’s procedures for addressing such charges include review by the ACEP Ethics Committee and by the Board of Directors; details of these procedures are available on the ACEP Web site. Consequences of expert witness testimony judged to be in violation of ACEP policy may result in public or private censure, suspension of ACEP membership, or expulsion from ACEP.3
- Medical Expert Standard of Care Review Panel. ACEP has a process for review of expert witness testimony that has been questioned. The process is educational and has no legal or organizational ramifications for the individuals involved. Several cases are available for public review.4
Emergency physicians may ethically participate as expert witnesses and should give serious consideration to the positive contribution their participation may make toward a just resolution of malpractice claims. Testimony should be based on objective facts of the case and existing medical knowledge, not on conjecture or on allegiance to a particular side of the case. ACEP has established two procedures for review of expert witness testimony. Accurate, honest testimony as an expert witness is important to the integrity of the judicial system.