Survey revealed that many members are unaware of ACEP’s medical-legal resources and activities.

Introduction and Methods

During June and July 2010, more than 2,200 ACEP members responded electronically to a survey regarding their career medical-legal experiences. The survey was sent out to all ACEP members who agreed to be contacted by e-mail. Not all respondents answered all 37 multipart questions, but the approximately 10% response rate is considered good for a lengthy and complicated survey. Only the general nature of the survey was disclosed in the invitation, sent out in the name of the president of ACEP. The survey was voluntary, and repeated assurances were made of confidentiality. No follow-up of nonresponders was done. Other than the lack of a valid e-mail address or permission to e-mail, the general reluctance of physicians to respond to surveys, and perhaps an avoidance of all things legal by some members, there is no reason to suspect a significant bias in the respondents. Not surprisingly, there was some attenuation of responses toward the end of the rather extensive survey.

Tellingly, in a 68-page report on the results, fully 56 pages were single-spaced comments by respondents.

Although the comments covered a very wide range of issues, the most frequent recurring themes in the spontaneous commentary were regarding expert witness testimony and a general sense of dismay and betrayal regarding malpractice litigation.

It was clear from the comments, as well as from the responses, that many members are unaware of resources and activities that ACEP has pursued in the medical-legal arena on their behalf.

Demographics

Of the respondents, 97.5% reported clinical practice in EM, 60% more than 10 years. A total of 72% of respondents reported urban or community practice, 16% academic, 8% rural, and 1.3% military (categories overlap). This is reflective of the general demographic makeup of ACEP members, who are 51.9% urban, 37.05% suburban, 24% academic, and 7.46% rural (3.58% are other; categories overlap).

Litigation Experience and Sequelae

More than 57% of respondents reported having been named in a claim for malpractice at least once. Of these, 59% reported more than one claim, and 9.5% had been named five or more times. About 83% of respondents with claims reported that one or more had been settled or dismissed without payment.

Of those who reported claims, 40% reported some payment was made on their behalf in one or more claims. Although results are not clearcut, of cases litigated, it appears that more than 86% resulted in a defense verdict. This comports with other recently reported data about litigated ED claims. Only 29% of respondents who had been sued (about 18% of all respondents) were aware of having been reported to the National Practitioner Data Bank based on malpractice payouts.

A total of 5% of respondents reported difficulty with licensure or hospital privileging relating to their malpractice history; 5% reported experiencing a rate change, while nearly 2% had been refused liability coverage based on their personal malpractice claims experience.

Almost 90% of respondents reported that they practice defensive medicine, defined as ordering tests or consultations to avoid potential liability. And 53% felt that defensive medicine influenced their patient management more than 25% of the time.

Tort Reform

Only 4% of respondents reported leaving a state because of its malpractice environment, but 50.4% felt that tort reform is the most important area for ACEP to focus its efforts.

Slightly more than 27% felt that education on the legal system and its effects on practitioners is the most important area for ACEP to focus its efforts.

Respondents were divided on the most effective potential tort reform provision, with 42% favoring health courts, 41.6% limiting malpractice awards, and 11% sanctions against egregious expert witnesses. More than 6% of respondents believed that their states would enact tort reform in the next 3 years, but the majority did not know.

The Most Frequent Recurring Themes Were Wxpert Witness Testimony and a General Sense of Dismay and Betrayal Regarding Malpractice Litigation.

Liability Insurance Coverage

The majority of respondents reported that their malpractice insurance is paid for by their group, while over 30% said it was paid by their hospital. Most liability carriers were commercial (32.3%), while group and hospital captive carriers were almost equally represented at 19.1% and 18.2%, respectively. While 20% of respondents reported a rate change based on their group’s claims experience, 45% did not know.

Fewer than half of the respondents said they had received a copy of their liability policy, and less than 15% had read the policy in its entirety. Nearly 80% believed that they had tail coverage, but nearly 10% did not know, and 33% did not know whether they had the option of purchasing occurrence-based coverage. Some 22% of respondents believed that they did have this option, while 45.3% did not.

Although 29% said that their malpractice insurance contract gives them control over whether to settle cases, a quarter said that it does not, and 45.8% reported that they did not know whether they have this control.

Expert Witness Experience

About a third of respondents reported having served as an expert witness in a malpractice case, with 10% having served three or more times. Approximately 10% have done so for more than 10 years.

There was inconsistency in the preponderance of plaintiff versus defense testimony. Only 40% of respondents who provide testimony stated that they serve as defense witness more than 50% of the time (58% served the defense less than half the time), while 82% of those who provide testimony for plaintiffs reported doing so less than half the time. However, respondents were not given the option of 100% or 0%, and significantly fewer responded to the question about plaintiff testimony (289 vs. 372).

Perhaps tellingly, more than 50% 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% have preserved copies of their testimony.

More than half of those who provide expert witness testimony say that 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% did so as an intellectual challenge or to earn nonpractice income. A total of 87% felt that ACEP should give members more guidance or education on the provision of expert testimony.

While almost a quarter of those who provide expert witness testimony reported that their related hourly compensation was approximately equal to their clinical compensation, nearly 60% reported their hourly compensation as an expert to be more. Over 60% reported that their compensation schedule as an expert varied depending on whether testimony was required. Nearly three quarters reported that the fact of their participation as an expert witness had never been made public in any way. More than half (54%) believed that their expert testimony had never been reviewed by anyone. No respondent reported that their testimony had been sanctioned by anyone. Nearly three quarters of those who testify had not preserved any copies of their testimony. Respondents were almost equally divided as to whether they have kept any record of their cases.

Other Legal Experience

A total of 68% of respondents had been subpoenaed to appear in court, and 56% had testified in court as a fact witness in a civil or criminal case; 21% have served as a forensic expert in a civil or criminal case, and 25% had never been subpoenaed. The survey explored other legal experiences of members. While 62.5% reported none of the following, 8.8% of respondents reported having experienced a contract dispute, and 7.6% reported an employment issue such as illegal termination or termination without due process, discrimination, harassment, or a hostile work environment. A licensing board action had been experienced by 5.6%, and an EMTALA violation or claim of violation by 3.9%. Some 5.7% had suffered a disability that affected practice, and 2% an injury or workers’ compensation issue. A total of 4.8% experienced an adverse peer review decision and 0.8% a Drug Enforcement Administration issue.

Awareness of ACEP Efforts

Members were asked about their awareness of available member resources in dealing with medical-legal issues. Although nearly 60% reported having experienced litigation stress, 87% had not sought any assistance for dealing with it. Over a third of those who had sought assistance did so from colleagues. The overwhelming majority were unaware of ACEP resources such as the peer-to-peer counseling mechanism, although 40% were aware of the document “So, You Have Been Sued!” Nearly two thirds were interested in CME on litigation stress management.

Expert witness issues were a major concern, as evidenced by nearly 20 pages of comments on the topic. And although nearly 71% of respondents felt that ACEP should increase its current activities in regard to expert witness testimony, more than half were unaware of ACEP’s expert witness and ethics policies and how to access and use them. Nearly three quarters (73%) were unaware of the standard of care review process, and two thirds were unaware that ACEP had investigated ethics charges against members regarding compliance with expert witness policy and ethical guidelines.

Nearly 62% of respondents were unaware of the Expert Witness Reaffirmation Statement, and over two thirds were unaware that they had affirmed the statement by joining or renewing membership. Almost no respondent had used the reaffirmation statement in defense of a case against them. A small percent of respondents (4.4%) had the statement cited to them while acting as an expert witness.

Formal Legal Training and Experience

Of the respondents, 389 (about 17%) reported some type of legal training or work experience, including 2% having completed a law degree or been admitted to practice law (passed the bar exam). Over 2% had taken some law school courses or worked in some capacity in a law office. The majority of those who had some legal training reported that the training was about the provision of expert testimony.

What Members Want

With regard to the legal needs of the members, approximately 60% wanted more articles on legal topics, FAQs on questions of general interest, and more online information at ACEP.org; 40% wanted more information by way of CME at Scientific Assembly and information related to seeking assistance in legal matters and answers to questions submitted in ACEP News. Some 30% wanted answers to questions submitted to acep.org.

And although more than a quarter wanted more education on the legal system and its effects on themselves as practitioners, when forced to choose which one area they most wanted ACEP to work on, over half of the respondents specified tort reform efforts.

While only 13% listed expert witness compliance with ACEP policy as their overarching concern, some comments suggested that this would have been their second most pressing concern. The vast majority opined that ACEP should give members more education and guidance on provision of expert witness testimony. Also, about a third of respondents who had been named in a claim did not feel that they were adequately prepared to testify in deposition or in court. These represent significant opportunities for ACEP to assist members.

Comments and Discussion

Naturally, there were some inconsistencies between answers, and the small numbers of responses on some questions made interpretation somewhat subjective. However, much useful information was gleaned from those who did respond, and especially from those who responded to all questions and those who added spontaneous comments.

A large number of respondents thanked ACEP for launching the survey and expressed a desire for feedback on the results. Many expressed surprise at the resources they did not previously know existed for dealing with various medical-legal concerns. Those who completed the entire survey were referred to a page on the acep.org website that contained many of the policies referenced in the survey. However, because the survey was rather lengthy, only about a quarter of respondents answered the last question.

Although the sampling method was not entirely random and nonrespondent follow-up was not pursued, the responses received are a valuable snapshot of the legal interests, experiences, and concerns of our members, and also present a substantial opportunity for ACEP, and especially its Medical-Legal and Education Committees, to respond to the needs of ACEP members.

Both committees will use the areas of need identified by the survey to craft educational articles, courses, and other means of enhancing knowledge about medical-legal subjects over the coming months and years. In addition, the Academic Affairs Committee and the Well-Being Committee will be working closely with the Medical-Legal Committee to expand and increase accessibility of information and resources relating to risk management and litigation stress management.