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Letter to the Editor

Disputing Rosen's Take on Censure

doi: 10.1097/01.EEM.0000520594.42201.36
Letter to the Editor

Editor:

Since the publication of the article about Peter Rosen, MD, I have received quite a bit of feedback. (“Rosen, Censured by ACEP, Disputes Claims as Unjust,” EMN 2017;39[4]:1; http://bit.ly/2oCGhrQ.) I have read criticisms that either I or ACEP must have had some ulterior motive in filing or pursuing an ethics complaint against Dr. Rosen. On the other hand, I have also received thanks for “taking on Dr. Rosen.”

Trust me, I wasn't exactly eager to make ethics accusations against a famous emergency medicine pioneer. I had carefully read Dr. Rosen's entire testimony in this case, and had also discussed the matter several times with Dr. Price Paul Omondi's defense attorney. My concern wasn't just that there were multiple factually incorrect statements in Dr. Rosen's testimony and in his comments in EMN's article, it was that Dr. Rosen created an inappropriate case precedent for the entire state of Georgia with his testimony. This is what prompted me to create an ethics complaint. My focus has always been on the testimony provided, not on the person testifying. I would have filed the same complaint regardless of whose testimony it was.

Dr. Rosen's statements that his testimony “was supported by medical evidence” and that he “wasn't given the opportunity to present his side of the case” simply aren't true. ACEP scrupulously followed the procedures in its ethics policy during this entire process. Dr. Rosen was given the opportunity to provide written responses to my complaint, to provide testimony to the board, and to give the board a written statement. On none of those occasions did Dr. Rosen or his attorney cite a single medical reference to support the assertions he had made in his deposition, not even a citation from his own textbook.

Similarly, Dr. Rosen's allegation that I “had not read all of [his] deposition” is also untrue. To the contrary, I cited excerpts from his entire deposition in my complaint. His deposition was 136 pages; I cited testimony from p. 135. It is also disappointing to read Dr. Rosen's assertions that ACEP is “hold[ing] itself out as doctors never commit negligent practice” and that ACEP says “whatever they do is OK.” These are straw man arguments. ACEP made neither statement in form or in substance. ACEP's board simply determined, after reviewing all the evidence presented by both parties, that Dr. Rosen had engaged in unethical practice as defined by ACEP's Code of Ethics for Emergency Physicians and that Dr. Rosen had violated ACEP's Expert Witness Guidelines. While I disagreed with some of the board's decisions, ACEP went out of its way to ensure that the process was fair. All ACEP officers who participated in this difficult case should be commended for their professionalism.

The article omitted an important aspect of this case: Dr. Rosen's sworn testimony that the physician committed gross negligence, which is an extremely high standard to prove. Georgia law defines “gross negligence” as “equivalent to (the) failure to exercise even a slight degree of care” and “lack of the diligence that even careless men are accustomed to exercise.”

Page 135 of Dr. Rosen's deposition has the following exchange:

Attorney: Do you understand from my prior discussions that gross negligence under Georgia law is the absence of slight care?

Dr. Rosen: Yes.

Attorney: Do you feel that in [the emergency physician's] care and treatment of [the patient], that he failed to use slight care?

A: I do.

The medical records in the case clearly showed that the physician examined the patient, performed a chest x-ray and ECG, gave the patient pain medications, and re-examined the patient before discharging him. Dr. Rosen's testimony that this physician's interventions were “less than slight” was used by the Georgia Supreme Court to set an incredibly inappropriate standard for gross negligence that will be used in future medical malpractice cases against every emergency physician practicing in Georgia and may be used as persuasive authority when courts in other states set standards for gross negligence in medical malpractice cases. The ripple effects from the expert testimony in this case are tremendous.

My closing statement during the board hearing in this matter included a plea that the board should not let status trump ethics. I sincerely hope that future discussions regarding this case help to reinforce the idea that any expert — plaintiff or defense — needs to provide ethical testimony. That would be fair to our patients and good for our profession.

William Sullivan, DO, JD

Chicago

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