[Editor’s Note: Last month’s column discussed dealing with an unethical expert before a trial.]
Explore This IssueACEP News: Vol 32 – No 06 – June 2013
What can you do about an unethical expert after the trial or settlement?
Regardless of the outcome of the case, after it is concluded, you have several more options. If the expert is an ACEP member, you can request an ethical review of the expert’s testimony through the College.
If testimony does not comport with the ethics policies of ACEP, some form of discipline may result, which would make future testimony less credible. Indeed, discipline by a medical association is actually reportable to the National Practitioner Databank, so it could even affect future licensure and practice by that physician.
A number of other specialty societies have some sort of ethics review in place, so if the “expert” is not an ACEP member, you can investigate reporting to another society as a possibility. However, in general no medical society is going to accept an ethical complaint lodged by someone who is not a member.
You can consider lodging a complaint with the medical board where the expert is licensed. For obvious reasons, “experts” are often recruited from places other than the location of the alleged malpractice. Several states, including Florida and Ohio, require at least a limited licensure in the state for any expert who is going to testify in the state. These regulations were passed specifically to give boards the authority to discipline dishonest or unethical experts. Most state medical practice acts proscribe unethical conduct such as misrepresentation and testifying falsely; however, the vast majority of medical boards has intervened only in cases of falsification of credentials by experts, and declined to become involved where testimony is alleged to be dishonest or unethical.
ACEP has a rather unique program called “Standard of Care Review” whereby a member can anonymously request a review of questionable testimony by an “expert” by a committee of members. Although the entire process is blinded and no discipline can result, there will be an educational process, as the findings of these reviews are published for everyone’s benefit.
This program was designed to help educate practitioners as to the actual standard of care as judged by a committee of peers, and also to put those who wish to serve as experts on notice that testimony is being actively reviewed for veracity and credibility.