Note: Part 1 of this two-part column discusses the ethics of expert testimony and standard of care. In Part 2, we will discuss options open to physicians who feel they have been the victims of unethical testimony.
Explore This IssueACEP Now: Vol 39 – No 04 – April 2020
As much as physicians complain about plaintiff’s attorneys, consider this: No malpractice case can go forward without a physician expert who is willing to testify that the case has merit. So who actually is to blame for unfair litigation?
Neither judges nor juries have in-depth medical knowledge; medical experts are required on each side to help explain the facts of a case in terms understandable to laypersons. Experts also testify as to the standard of care, the scope of the plaintiff’s damages, and whether the patient’s damages are indeed due to the defendant’s negligence. They are a necessary part of the judicial process; ethical, knowledgeable experts are needed, both to defend physicians who are unfairly blamed and to support plaintiffs who have truly been harmed by malpractice.
However, unethical or exaggerated medical testimony is a common source of distress among physicians undergoing litigation. Although many experts are ethical in their practice, there are also “hired guns” who earn millions of dollars over time for their questionable opinions. In a 2010 survey of ACEP members on medical-legal issues, the most common free-form responses were “regarding expert witness testimony and a general sense of dismay and betrayal regarding malpractice litigation.” In addition, 87 percent of respondents felt ACEP should give members more guidance on the provision of expert testimony.1
Challenge of Being an Ethical Witness
Most physicians who become medical expert witnesses have no extra training or certification to fill that role. The training they do receive often comes from attorneys who instruct them how to persuade juries to their side’s advantage, not how to deliver unbiased factual testimony and interpret standard of care. That same ACEP survey revealed fewer than half of emergency physicians who serve as experts keep any records of their testimony, and even if they did, there is no regular oversight of expert witnesses or their testimony, although ACEP members may submit testimony for review after their case is completely closed.
The survey also revealed that the majority of respondents were unaware that ACEP has published ethical guidelines for emergency medicine expert witnesses.2 In my first trial, the emergency medicine expert was an academic from Canada who had never practiced in the United States and was paid highly to opine on care provided in a community emergency department in the United States. On the stand, he reported he was simply unaware of ACEP’s first ethical guideline: to qualify as an expert in emergency medicine in the United States, the physician “shall be currently licensed in a state, territory, or area constituting legal jurisdiction of the United States as a doctor of medicine or osteopathic medicine.”
The appeal of expert witness work is undeniable. Experts often earn hundreds of dollars more per hour than physicians are paid to work clinically. Expert work can be done at any hour from the comfort of home. But as physicians comment in my Doctors and Litigation podcast, there is a tremendous financial incentive to provide attorneys with the skewed testimony they desire; if a physician delivers supportive (preferably strongly worded) opinions, that expert will likely have additional lucrative cases referred to them and may have the opportunity to testify at trial, which can pay many thousands of dollars for a single day.
One interviewee noted that when he returned opinions that did not support an attorney’s assertions, they simply failed to engage him thereafter, finding instead a more compliant expert. Another physician described an instance where a plaintiff’s attorney did not accept his original opinion stating no malpractice had occurred and instead sent him a rewritten version with a different conclusion, asking him to simply sign it (with the promise of additional revenue).