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.

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.

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.

References

1. http://www.protectpatientsnow.org/site/c.8oIDJLNnHlE/b.1540481/k.8D2A/Fact_Sheets.htm, accessed 11/17/09.
2. Andrew LB: Expert witness testimony: The ethics of being a medical expert witness. Emerg. Med. Clin. N. Amer. 2006;24:715-31.
3. Procedures for Addressing Charges of Ethical Violations and Other Misconduct, http://acep.org/practres.aspx?id=33698, accessed 11/14/09.
4. http://acep.org/practres.aspx?id=32142&ekmensel=c580fa7b_90_738_32142_6, accessed 11/14/09.

Dr. Marco and Dr. Moskop are members of ACEP’s Ethics Committee.