Colleague Commentary: So You've Been Slimed

ACEP News
September 2009

By Robert C. Solomon, M.D.
ACEP News Medical Editor

The lecture was titled, "So you've been sued." You've seen that title. Maybe you've heard the lecture. It's all about the experience that starts with the certified letter telling you that a patient you've taken care of has consulted an attorney and filed a claim of medical negligence against you. It can be a painful, embittering experience. That lecture can tell you a lot about what to expect and how to cope with it.

The subject of this article is one little slice of that ordeal. You're being accused of having harmed a patient by practicing medicine in a manner that failed to meet the standard of care. And who is saying such a terrible thing about you? A patient you tried to help ... bad enough. But the motivations are understood. If there was a bad outcome, it must be somebody's fault. The patient is angry, and you are as good a target as anyone else. A plaintiff's attorney ... well, you think, a lawyer will say anything about anyone, that's what he gets paid to do, nothing personal. And a colleague. That's right: Another doctor is saying you were negligent, that you did not do what a careful practitioner should have done in the evaluation and treatment of the patient according to generally accepted standards. And this colleague is a fellow emergency physician--in fact, a member of the American College of Emergency Physicians. Were he to have reviewed the facts of the case in a fair and objective manner, he could never have said such a thing about you. Could he?

So you've been slimed.

A physician serving as an expert witness may express his opinion about another physician's conduct in a letter certifying that the plaintiff's case has merit or in sworn testimony in deposition or at trial. ACEP's commitment to objective, truthful, and impartial testimony related to patient care, whether offered on behalf of the defendant or plaintiff, resulted in its development of guidelines that its members are expected to follow when they serve as expert witnesses in medical malpractice cases. Essential elements of these guidelines include the following:

  • The expert witness should not provide expert medical testimony that is false, misleading, or without medical foundation.
  • After that process, the expert's opinion should reflect the state of medical knowledge at the time of the incident.
  • The expert witness should review the medical facts in a thorough, fair, and objective manner and should not exclude any relevant information to create a view favoring the plaintiff or the defendant.
  • The expectation that members of ACEP will adhere to these guidelines implies that there can be adverse consequences for a member who does not: Misconduct as an expert, including the provision of false, fraudulent, or misleading testimony, may expose the physician to disciplinary action. Additional guidance is provided in ACEP's Code of Ethics for Emergency Physicians in the section entitled "Relationships With the Legal System as an Expert Witness," available at www.acep.org.

    Do you think an ACEP member serving as an expert witness violated the guidelines and should be subject to disciplinary action? There is a process to which all members of ACEP have access: the filing of a complaint alleging that another member has violated one of the College's policies regarding ethical conduct. The "Procedures for Addressing Charges of Ethical Violations and Other Misconduct" are at www.acep.org.

    You should be prepared to submit documentation of just what the expert witness said (or wrote) that you believe violated the guidelines. Your complaint should be as specific as possible. ("He said, right here on page 44 of the transcript of his deposition, that no one with lower abdominal pain should be sent home without a CAT scan to rule out appendicitis.")

    Who will sit in judgment of the conduct of the expert witness? This responsibility begins with the Ethics Committee (or a subcommittee thereof). The member filing the complaint (complainant) and the member against whom the complaint is filed (respondent) provide all relevant documentation they believe supports their respective positions. This is then reviewed and discussed by the subcommittee, which must formulate a recommendation to the Board of Directors of the College. If disciplinary action is recommended, it may take the form of censure, suspension, or expulsion. Censure may be private or public. Suspension of or expulsion from ACEP membership and a description of the conduct that led to such action is reportable to the Boards of Medical Examiners in the states in which the physician is licensed, which may result in a report to the National Practitioner Databank. The Board of Directors then considers the ethics subcommittee's recommendation. The Board may dismiss the complaint. If, however, the Board finds that the complaint may, indeed, warrant disciplinary action, the respondent is offered the opportunity for a hearing before the Board.

    This process may sound complicated or intimidating. But if you've been sued, it's nothing compared with what you've already been through. Most important, it is designed to conform to the due process requirements of the Health Care Quality Improvement Act (HCQIA). And it's important for you to know that your College takes the problem of unethical expert witness testimony very seriously. Do you think you have grounds for a complaint against another member? Call ACEP at 1-800-798-1822 and ask to speak to our General Counsel, Cal Chaney, J.D.

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