Note: Part 2 of a 2-part series.
Explore This IssueACEP Now: Vol 39 – No 07 – July 2020
“There are a lot of physicians out there that don’t care about throwing their colleagues under the bus—not because [the defendant] provided substandard care but because they want to be paid. They know if they say what the attorney wants them to say, they’re more likely to be called back again, to bill again … and I have noticed myself … that when I don’t give the attorney the answer they are looking for, they tend to not ask me to do plaintiff work again.”
—physician expert, “Doctors and Litigation: The L Word” podcast
In Part 1 of this 2-part series, I discussed the ethics of expert witness testimony and how the behavior of unethical experts can fuel unjust malpractice litigation, creating considerable stress for the defendant. Even well-meaning experts can do harm to the system by misunderstanding or misapplying the legal concept of “standard of care.”
Teaching skills for providing ethical and effective legal testimony is largely ignored during medical training; expert witnesses are mostly self-styled, with any instruction usually coming from attorneys, who have their own motives.
Although many physicians do deliver fair, accurate testimony for both plaintiffs and the defense, there are unfortunately also physicians who deliberately supply misleading, exaggerated, or frankly false testimony for tidy sums of money. What can be done about these “testiliars”?
Physicians who feel they have been wronged by an expert witness often have feelings of betrayal, rage, and helplessness. The stakes are high, and emotions are raw. Defendants sometimes have the urge to exact “revenge” in some manner—not in a violent way but rather they often have the desire to disempower or discredit that expert in a public manner. It is absolutely critical, however, that defendants understand that no action against, or engagement with, an expert witness should be taken during the entirety of a legal case. (In rare cases, this may be done but only through your attorney.) Any attempt to directly engage with or affect the reputation of an expert during litigation is considered witness tampering or intimidation. This is considered a criminal action and can lead to very serious consequences.
One tragic example of these consequences involved a physician who was unaware of the need to wait until his trial was over to complain about an expert’s unethical testimony to that expert’s employer. This defendant took his own life after his actions were discovered by the court and he was accused of witness tampering. He left a suicide note detailing his grief over the manner in which expert witness testimony is handled in the United States.1
There are ways, however, in which physicians may safely work with their attorneys during litigation to diminish the potential impact of an unethical expert. I’ve covered this topic as the creator and host of the podcast “Doctors and Litigation: The L Word.” Here are a few suggestions from Louise Andrew, MD, JD, whom I recently interviewed for the podcast. Competent attorneys will be aware of these, but I advise double-checking with them.
Familiarize your attorney with the ACEP Code of Ethics for expert witnesses.2 The attorney can “remind” the expert at deposition that this code exists and go through it line by line. This alerts the expert to the potential for scrutiny of their testimony later—and just may change what comes out on the record.
Make sure the expert meets your state requirements to testify against you. For example, some states do not allow physicians from other specialties to testify against emergency physicians.
Check the expert’s credentials on their CV against what is listed on specialty board sites and http://docfinder.docboard.org. This site is a wing of the Administrators in Medicine program, in collaboration with the Federation of State Medical Boards. You can see what information state boards have about the expert, including whether the person is board-certified, has had any malpractice settlements or judgments against them, or has been disciplined. A good question to ask is whether the expert is currently board-certified. (In my first trial, a hematologist claimed to be board-certified under oath but, in fact, had let his certification lapse many years before; it was quite compelling when my attorney brought this fact out on the stand.)
If the testimony is not credible, help your attorney understand your reasoning. This will help them craft their arguments in preparing for trial.
Ensure that your attorney has utilized legal subscription services that compile information about expert witnesses, including CVs, articles, or chapters they have authored. Check for inconsistencies from their testimony that could be leveraged against them.
If the expert has testified in federal court, there may be a large amount of information to be discovered, as experts in federal cases are held to a higher standard than at the state level. Federal experts are required to submit copious documents and previous testimony, which will be on record.
After your case is completely closed, you might safely consider the pursuit of justice against an unethical expert. This desire, or a desire to change the system, can be compelling. Greg Henry, MD, FACEP, states in the podcast, “I probably know a dozen doctors who went to law school just to get even.” Most physicians, however, would likely opt for a less labor- and time-intensive option (although I have acquaintances who have done just that).
If law school isn’t in the cards but you want to take action, you should be thoughtful about how you proceed. Suing the expert is generally not an option, as there are protections for expert witnesses under the law. This ensures there will be experts willing to testify when required. One physician interviewed for the podcast (called Dr. M) recounts how he made many copies of an expert’s testimony after his case was over and mailed it to her colleagues and employer along with a note asking them to read it and consider taking steps if they found it egregious. Actions of this nature are quite tempting, but you should be aware that this could potentially expose the physician to further litigation for defamation or tortious interference with contracts (wrongful interference in a business contract).
Dr. M also proceeded with what is generally considered a “safer” option: the pursuit of censure from a professional organization, in this case ACEP. Many professional societies, including ACEP, have methods for submitting testimony for review or for citing ethics violations. For most organizations, including ACEP, the complainant must be a member of the organization (which makes it difficult to pursue an expert of a different specialty). An ACEP member may also file a complaint on someone else’s behalf. ACEP’s procedure for the review of testimony regarding standard of care can be found online.3 If the review panel finds there is indeed inaccurate or unethical testimony, it may choose to privately or publicly censure the expert; more significant or repeat transgressions may result in suspension or expulsion from ACEP. Suspension (temporary) or expulsion (permanent) may be reported to the National Practitioner Data Bank, which, among other things, becomes an effective way to hamper their further work as an expert witness.
The expert’s testimony in Dr. M’s case was indeed found by the ACEP review panel to be egregious, prompting a formal censure of the expert. This expert was, in fact, the subject of more than one complaint and was eventually suspended from ACEP, with an accompanying National Practitioner Data Bank report filed.
Although going through the formal process of submitting testimony can take time, that time can bring perspective and some healing. Physicians may shy away from submitting testimony, not wanting to relive painful events. However, the submission of truly unethical testimony has the potential to bring a sense of closure and justice as well as help future defendants, a good thing that might come out of a difficult process.