Secondary Logo

Journal Logo

Letter: Expert Witness Malpractice

doi: 10.1097/01.EEM.0000410884.18751.53
Letter

Editor:

Dr. George Hossfeld's You've Been Served column, “Inappropriate Experts,” once again hit a nerve by exposing two self-styled apparently academic experts who testified that an EP practicing in a rural hospital must have and utilize all the diagnostic and consulting benefits of a tertiary care facility to meet the applicable standard of care. (EMNow 2011 Oct 20; http://bit.ly/InappropriateExperts.) Clearly both experts lacked even a rudimentary knowledge of the legal definition of standard of care, which in every state is some version of “the degree of care that would be provided by a reasonably competent practitioner practicing under the same or similar circumstances.”

For an expert to opine that the standard of care requires more than this is, in fact, expert witness malpractice. Yet similar uninformed or knowingly false statements take place under oath in courtrooms across the country every day. The reason they can continue to be uttered is that most expert testimony is never published and rarely, if ever, peer-reviewed.

Both major emergency medicine organizations in the United States (and many other specialty societies) now have expert witness guidelines, policies, or affirmations that help members understand their obligations when serving as expert witnesses, and other mechanisms by which members can report false or egregious testimony by self-designated experts who are members of the organization. In the case of the American College of Emergency Physicians, members can be referred for investigation of potential violations of organizational ethics policies, including the expert witness guidelines (http://bit.ly/EthicalViolations), or blinded review of the purported standard of care (http://bit.ly/ACEPpractice).

A few academic institutions have expert witness policies that mirror those of medical societies. A few state medical boards have found expert witnesses in violation of the unprofessional conduct provisions of the state Medical Practice Act, though generally for falsification of credentials instead of false statements regarding the applicable standard of care.

The problem is that there is no unbiased source of education available for aspiring experts on what was legally or ethically required of them. For the most part, would-be experts are “educated” by the attorneys who engage them, whose ultimate motive (expert advocacy for their client) can easily taint the process by providing only partial information or biased or even false information, such as that the standard of care is the same in every hospital in the country. The attorneys who retained the experts referred to in the column clearly allowed such opinions to go forward, and it seems that the opposing attorneys did nothing to correct the false information. The experts themselves obviously had no idea what was legally required of them as experts, and how easy it is to become an advocate for a party instead of an educator for the judge and jury, their role in the judicial system as defined by rules of civil procedure. (Samuel R. Gross, Expert Evidence, 1991 Wisconsin Law Review 1113, 1125.)

We do need physicians who are willing to provide opinions (on both sides) in cases of potential malpractice if the justice system is to have any validity whatsoever. Those who choose to serve in this role have a moral obligation to prepare themselves independently by reading and educating themselves through unbiased sources before delving into what has become a lucrative sideline, full of ethical minefields, which may be a particular hazard for academicians. (Emerg Med Clin North Am 2006;24[3]:715.)

“To put it bluntly, in many professions, service as an expert witness is not generally considered honest work. Experts in other fields see lawyers as unprincipled manipulators of their disciplines, and lawyers and experts alike see expert witnesses — those members of other learned professions who will consort with lawyers — as whores. The best that anyone has to say about this system is that it is not as bad as it seems, and that other methods may be worse.” (Samuel R. Gross, Expert Evidence, 1991 Wisconsin Law Review 1113, 1125.)

Louise B. Andrew, MD, JD

Victoria, BC

Dr. Andrew can be reached atwww.MDMentor.com.

Copyright © 2012 Wolters Kluwer Health, Inc. All rights reserved.