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Viewpoint: Malpractice Weighs Heavily on EPs

Andrew, Louise B. MD, JD

doi: 10.1097/01.EEM.0000419526.26894.2a
Viewpoint

Dr. Andrewis a former officer and chair of ACEP's Wellness Committee and a senior member of its Medical-Legal Committee. She is also an independent educator and litigation stress counselor with a career-long interest in expert witness and physician health issues. She can be contacted throughwww.MDMentor.com.

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The ACEP Medical-Legal Committee electronically surveyed all members of the American College of Emergency Physicians in 2010 to assess their career medical legal experiences, and the results were worrisome.

The survey was not a rigorous scientific study, but it was among the first of its kind, and it did result in some interesting findings. The 10 percent of members who responded were fairly reflective of members in general, and 60 percent had practiced emergency medicine for more than 10 years.

More than 57 percent of respondents had been named in a claim for malpractice at least once. More than half of them reported more than one claim, and 9.5 percent had been named five or more times. The vast majority of claims had been litigated to a defense verdict or settled without payment, but 40 percent reported that some payment was made on their behalf in one or more claims. Only 29 percent of respondents who had been sued were aware of having been reported to the National Practitioner Data Bank based on malpractice payouts.

Almost 90 percent of respondents reported that they practice defensive medicine (defined as ordering tests or consultations to avoid potential liability), and 53 percent said defensive medicine influenced their management more than 25 percent of the time.

Surprisingly, less than half of the respondents said they had received a copy of their liability policy, and fewer than 15 percent had read the policy. About 10 percent did not know whether they had tail coverage. Twenty-nine percent said their malpractice insurance contract gave them control over whether to settle cases, a quarter said it did not, and 45.8 percent reported that they did not know whether they had this control.

About a third of respondents reported having served as an expert witness in a malpractice case, with 10 percent having served three or more times. It was difficult to determine whether there was any preponderance of defense or plaintiff testimony because more than 50 percent of those who serve as experts do not keep any record of their cases (although this is required by federal courts) and less than 30 percent have preserved copies of their testimony. More than half who provide expert witness testimony say they do so because of an ethical duty to participate in the legal process or to support the specialty or a colleague, but around 15 percent did so as an intellectual challenge or to earn nonpractice income.

While almost a quarter of those who provide expert witness testimony reported their hourly compensation approximately equal to clinical compensation, nearly 60 percent of those who provide expert testimony reported their hourly compensation as an expert to be more than their clinical compensation. Nearly three-quarters reported that their participation as an expert witness had never been made public.

Nearly 60 percent reported experiencing litigation stress, but 87 percent had not sought any assistance for dealing with it. Expert witness issues were a major concern to members; those questions yielded nearly 20 pages of comments. Nearly 71 percent of respondents said ACEP should increase its current activities on expert witness testimony, but more than half were unaware of ACEP's expert witness and ethics policies. Even more — 73 percent — were unaware of the Standard of Care Review Process (see FastLinks), and two-thirds were unaware that ACEP had investigated ethics charges against members regarding compliance with expert witness policy and ethical guidelines. Nearly 62 percent of respondents were unaware of the Expert Witness Reaffirmation Statement (see FastLinks), and more than two-thirds were unaware that they themselves had affirmed the statement by joining or renewing membership. Almost no respondents had used the reaffirmation statement to challenge an expert in a case against them.

Although this was an ACEP member survey, there is no reason to believe that these medical-legal experiences are not typical for all emergency physicians. Emergency medicine is a medium-risk specialty; 7.5 percent of EPs experience a claim each year, and the overall average across specialties is 7.4 percent, with approximately 20 percent of claims resulting in a monetary payout. Emergency medicine is considered relatively low risk in terms of average and median amounts awarded. (New Engl J Med 2011:365[7]:629.)

The survey, especially the comments, suggested that EPs continue to have a fairly high level of concern about malpractice risk, and that apprehension results in their practicing a significant amount of defensive medicine. They have, however, a relatively low level of knowledge about what protections are available in liability insurance coverage and contractual provisions. They also feel a great sense of betrayal over expert witness testimony that is deemed to be unethical, but very few are aware of or have taken advantage of some of the existing mechanisms to ensure accountability for expert witness testimony.

Those who have experienced litigation undergo significant stress, but many do not know where to turn for help. These are troubling findings, but knowledge about them is useful to ACEP's Medical-Legal and Wellness committees, which will be increasing their educational efforts and enhancing litigation support mechanisms over the next few years. Accessibility to the greater emergency medicine community is a goal. Any and all input is welcomed.

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