Living with an administration that refuses to recognize tort reform as a necessity for health care reform makes it easy to lose sight of the fact that other avenues of action do exist. We already know that the slowest and most inefficient way to cause change is through governmental edict. Suppose we ponder opportunities other than actual changes to the law that can improve the malpractice environment?
Anyone who has survived a trial can confirm that one of the most painful parts of the whole process is interacting with a colleague who has “gone to the dark side.” It is disappointing and amazing the kind of deposition that big money can buy. One disgraceful expert testified that he had personally seen more cases of ankylosing spondylitis than exist in the entire medical literature! Another likened the use of fibrinolytics for CVA to using a recipe to make a cake.
I have no problem with an experienced emergency physician acting as a plaintiff's expert witness if he is familiar with the conditions in which the defendant doctor practices. That doesn't mean a university EP, even with exceptional academic credentials, is necessarily qualified to testify about standard of care at a hospital in an infinitely dissimilar environment. Caring for patients in your typical tertiary care hospital is worlds away from hospitals with sparse or no specialty backup. Trust me. Anyone who says that there is only one national standard of care has never practiced in White County, IL, or Tyler County, TX.
How is it, then, that some of our contemporaries — fine people all, no doubt — have decided that they will be the self-appointed professional arbiters of quality patient care for the rest of us? Do they actually think they know the subtleties of practice in various diverse environments? Can these “career experts” imagine that the case they review did not happen in a vacuum on slow Tuesday afternoon but in a hectic ED with other patients and plenty of distractions? Do they even see patients clinically? Has anyone ever checked? How have they rationalized the fact that they have become known as the plaintiff's lawyers “go-to guy” so much that they send case after case their way?
I'm especially talking about those experts who have found a “calling” to blow the whistle on all the bad doctors out there. These are the experts that claim that no matter what kind of workup was done, there was always one more test or treatment that “every first year medical student knows to order.” In any event, the care in question was never fast enough to satisfy the standard of care in their skewed eyes.
Certain professional organizations have attempted to weed out unqualified or unethical experts from their ranks. The American Academy of Emergency Medicine and the American College of Emergency Physicians have published excerpts of questionable testimony using peer pressure to deter this practice. Other specialties have censured members for dubious testimony. While not exactly a daunting penalty, it does limit the expert from further testimony because it is discoverable by either side in a future lawsuit. Unfortunately, efforts to police our own have been limited by concerns of — what else? — lawsuits.
As emergency physicians, we're a sizeable group of clever and resourceful individuals. Not only “book smart,” we are exemplified by the flexibility and innovation to MacGyver duct tape, bungee cords, and safety pins to repair anything from a femur fracture to a faulty transmission. I steadfastly believe that there are not-yet-perceived remedies that our creative membership can exploit to ensure expert testimony come solely from qualified experts.
I've done expert witness testimony for more than two decades. One lesson I have learned is that before I take a case for either side, I try to put myself in that EP's shoes. I confess to being influenced often by the thought that “there but for the grace of God go I.” I know it's never black and white, but depending on the shade of gray, I make my determination. If I choose to accept a case for either side, I do so knowing that the other side will pull out all stops to discredit me and my testimony. In other words, I better feel committed to my position, or I shouldn't be taking the case. When my testimony is taken, I speak as if it will be openly published for all my peers to see. The bottom line is, if I'm ashamed of what I am testifying to, maybe I shouldn't be saying it. What a concept.
Recourse Against Misleading Testimony by Expert Witnesses
The American College of Emergency Physicians will evaluate the statements of expert witnesses provided in medical malpractice cases, whether expressed by formal report, deposition, or testimony.
The expert's statements are reviewed for false or misleading information or opinions without medical foundation on behalf of plaintiff or defendant. ACEP may impose adverse consequences for unethical activities, including formal disciplinary action.
Call ACEP at (800)798-1822 to speak with the ACEP General Counsel or read “Procedure for Review of Testimony Regarding Standard of Care in Emergency Medicine” http://www.acep.org/practres.aspx?id=30090 and “Procedures for Addressing Charges of Ethical Violations and Other Misconduct.” http://www.acep.org/practres.aspx?id=33698
About You've Been Served
This column is dedicated to the thousands of committed physicians and other health care professionals, who despite their best efforts, devotion, and selfless lives committed to the best patient care, wound up in the defendant's chair on a malpractice suit. At best, I hope this column has an impact on litigation reform, abandoning the unrealistic, unattainable standard of care that has been set as perfection. At a minimum, I hope to serve as a sounding board for the countless professionals who have been subjected to personal attacks by the very patients we have vowed to help. — GH
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