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.

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).

Consequences of Unfair Testimony

Physicians who knowingly provide exaggerated or unfair testimony may think of this as a “victimless crime,” but this severely underestimates the impact on physician defendants’ stress, which has directly led to suicide in some known cases.³ More often, as indicated in the ACEP survey, it adds to litigation stress in its entirety, which can have severe repercussions on the defendant. It also fuels unwarranted litigation and increases insurance and litigation costs.

Even well-meaning physicians can unknowingly do damage as experts by not understanding the concept of “standard of care.” We are inclined to judge one another’s work harshly when it falls short of perfection, and we all strive for perfection ourselves, but “standard of care” is not perfect care. Standard of care is “minimally competent care”—what a minimally competent physician might do in a similar environment, with similar resources, faced with a similar case.⁴

Another concern that remains unaddressed is that there is no requirement for academic physicians to declare conflicts of interest when they have earned income as experts on a given topic. This is disconcerting, as highly paid experts who regularly testify on one side of a given topic have a very strong incentive to give presentations and continue publishing articles that support that opinion. When they speak at conferences or take to social media espousing these views, it advertises to attorneys searching for experts on that topic. In turn, attorneys point to those appearances and publications to bolster the expert’s perceived credibility and “unbiased opinion” as an expert in court.

How to Be a Good Expert Witness

Experts should familiarize themselves with and staunchly adhere to ACEP’s expert witness guidelines.2 However, I have my own common-sense suggestions for your consideration.

• Don’t do expert work at all if you have to overstate or misrepresent your credentials or expertise.
• Don’t do expert work if you have stopped working clinically or if you are in training or only a few years into practice.
• Don’t testify about matters you don’t have extensive personal experience with or if you have never regularly practiced in a similar setting.
• Don’t testify in cases regarding specialties in which you are not board-certified.
• Don’t let attorneys choose your words or skew your language to benefit one side. Do not overstate your opinion. Do not deliberately omit information.
• Your income from expert work should not exceed 30 percent of your clinical income in any given year.
• Don’t equate a bad outcome with malpractice.
• Be mindful of hindsight bias. If you think you likely would have done the same things as that defendant, say so.
• Your role is not to persuade anyone; it is to interpret the facts and state whether the standard of minimum competence was met.
• Take the time required to fully understand the case. Do not equate bad charting with malpractice, even if it means digging for information. If you subsequently learn additional information, reserve the right to change your opinion.
• Finally, testify unto others as you would have them testify unto you—honestly, objectively, dispassionately, and with a clear understanding of the medical facts, as well as the defendant’s practice environment and the legal definition of standard of care.

Dr. Pensa is clinical associate professor of emergency medicine at the Warren Alpert School of Medicine of Brown University in Providence, Rhode Island; associate director (education) of the Emergency Digital Health Innovation program at Brown; and creator and host of the podcast “Doctors and Litigation: The L Word.”

References

1. Andrew L. ACEP member medical-legal survey results. ACEP Now. 2012;31(4).
2. Expert witness guidelines for the specialty of emergency medicine. ACEP website. Accessed March 26, 2020.
3. Martyr for a cause? FierceHealthcare website. Accessed March 26, 2020.
4. Moffett P, Moore G. The standard of care: legal history and definitions: the bad and good news. West J Emerg Med. 2011;12(1):109-112