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Viewpoint: Imagine Being Bold Enough to Oppose Paid Experts

Silverman, Harvey MD

doi: 10.1097/01.EEM.0000389830.88512.f2

I was not too sure about Philadelphia.

I was a New Englander, born and raised. I attended college and medical school and did an internship there, and even had the good fortune to be stationed there during my time as a Navy doctor.

Philadelphia? It was just this side of the Mason-Dixon line where people ate something called “scrapple,” and spoke oddly like the soon-to-be-created Rocky Balboa character. They strutted down the main streets on New Year's Day wearing ridiculous outfits decorated with ostrich plumes and called themselves “mummers.” For goodness sake, the baseball team wasn't even in the same league as the Red Sox!

In 1973, there were only six emergency medicine residencies in the entire country, including one in Philadelphia. It, like the others, had been started by a visionary physician who, like the others, continually struggled to keep the residency operating. Emergency medicine at that time was more of a hope, an idea, than a reality. There were no scientific journals, no real textbooks. There was no residency review or accreditation, no board certification, and no recognition, let alone acceptance, by organized medicine. It was literally possible to know every emergency medicine resident in the country.

In addition to the handful of residencies, there was a tiny organization started a few years earlier by eight physicians. The American College of Emergency Physicians hoped to assist physicians in improving their knowledge and skills in emergency medicine and advancing the field. Its publication, the Journal of the American College of Emergency Physicians, was little more than a newsletter.

Rather than an opportunity, most physicians regarded emergency medicine as a dead end. It was a field for physicians who could not survive in practice or for foreign medical graduates who had trouble with English, or for itinerants or elderly, semi-retired physicians.

So I came to Philadelphia to be a resident in emergency medicine. The other residents and faculty regarded us as curiosities. Our abilities were suspect, our motivation questioned. Turf wars with the established specialties sometimes occurred. We could count on neither professional respect nor a wide choice of positions in the future.

All this made it a wonderful, exciting time. We all understood what we were getting into and the obstacles ahead. We considered ourselves pioneers of a sort, on a great adventure with an unknown outcome. Residents and practicing emergency physicians came together with a wonderful camaraderie.

As our professional society, ACEP became a central point about which to rally. It received strong support from us all. Attendance at its national meetings grew, yet it was still small enough to allow knowing many of the leaders and members. We made voluntary contributions to begin the work of establishing emergency medicine as a recognized specialty and creating a certifying board. We all helped one another, and maintained an admirable esprit de corps.

As for Philadelphia, it turned out to be not so bad after all, but I eventually returned to New England.

By the early 1980s, there were first-class emergency medicine textbooks. JACEP had evolved into the Annals of Emergency Medicine, and published original scientific papers. There was residency accreditation and board certification as well as acceptance and respect by other physicians. The number of residencies had increased, and many attractive academic and clinical positions were available. ACEP membership had increased by many thousands.

During this time, a malpractice suit was filed against me. As other physicians have well described, it was an unpleasant and stressful experience. I obtained the emergency department record and reviewed the case, carefully and more than once. I was confident I had not been negligent.

As the case proceeded, I was provided a copy of the opinion of the plaintiff's expert. I was quite dismayed to find he was a career emergency physician I knew.

Recalling the camaraderie and esprit de corps of emergency physicians and believing he had shared the same vision of and hopes for emergency medicine as I caused me to doubt my earlier confidence that I had not been negligent. Not only was he a practicing emergency physician, he was a member of the ACEP Board of Directors! ACEP, our organization, around which we rallied, to which we gave our support, created to advance our specialty, improve our skills, share our hopes. It would be some sort of conflict, I thought, if a board member whose role was to support emergency medicine did arguable harm to it by testifying for the plaintiff if there were not malpractice. Why, he even listed his board of director's position as a qualification that rendered him an expert.

Malpractice, especially in a new field like emergency medicine, was a big issue even then. If he were testifying against me, then perhaps I had been negligent after all. I reviewed the case again with his involvement and opinion in mind. And then again. Still, I was confident I had not been negligent.

When the case came to court and I heard his testimony, I better understood. He testified that he was being paid nearly $2000 for his appearance, and had been paid additional money for his review and preparation time. (My expert declined any payment for his testimony, but that is a topic for another essay.) Being a plaintiff's expert may have been financially lucrative for him, but the case was correctly decided in my favor.

After the case ended, I carefully wrote a resolution to be considered by ACEP. I proposed that officers and board members should not profit from testifying as plaintiffs' experts and be bound by their personal honor to not do so for three years following their ACEP service. I had no objection to their testifying as experts if they felt the need to right a wrong, but I believed it should be done without personal profit to set aside any potential conflict of interest.

Though a sound and reasonable resolution, ACEP rejected it, instead merely resolving that ACEP board membership not be used as evidence of expertise, and not addressing any conflict of interest or potential adverse effects on emergency medicine or emergency physicians.

Other physicians have recounted what they learned from the experience of being the subject of a malpractice claim — the importance of charting and documentation, the value of good communication, the need for systems to avoid crucial data being overlooked. They have learned about the greed of some patients and the avarice of some attorneys.

My lesson was different. Today, reflecting back almost three decades, I am struck by the opportunity ACEP missed. Suppose ACEP had been bold enough, principled enough, to accept that resolution rather than to protect narrow interests. I can imagine some ACEP directors or officers acting as plaintiffs' experts in cases of egregious negligence, not for personal gain but because it was the right thing to do. I can imagine this action leading to the devaluation of the opinions of paid experts. I can imagine cases being decided on the actual facts rather than on the tailored statements of those who give paid opinions.

It is too late. Malpractice has become too large an industry with too many parties making too much money: insurance companies, plaintiff attorneys, defense attorneys, plaintiff experts, defense experts.

Could it have happened? Would physicians act as experts for no personal gain? Recall that my defense expert declined any payment, and inspired by that, I later participated as an expert in a couple of cases for no payment.

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