In our 2010 all College Medical Legal survey, we learned that many ACEP members participate in the legal system as expert witnesses. About a third of our respondents reported having served as an expert witness in a malpractice case, with 10% having served three or more times.

There was inconsistency in the preponderance of plaintiff versus defense testimony reported. Significantly fewer responded to the question about plaintiff testimony, but fewer than half claimed that they testify solely on behalf of defendants. When I speak to people about expert testimony, they are often quick to announce that they testify solely on behalf of defendants, or for plaintiffs, “only in meritorious cases.”

They seem surprised when I suggest that in order to be considered nonpartisan, they should make themselves equally available to plaintiffs and defendants for review of cases.

Almost 90% of survey respondents felt that ACEP should give more guidance or education on the provision of expert testimony. So far as I am aware, ACEP has never provided any formal education on how to be an ethical expert witness. Although we have developed excellent guidelines on expert testimony, a statement of adherence to those guidelines that is a requirement of membership application or renewal, and two policies for review of expert testimony, our survey revealed that most members are still not aware of any of these.

The last article in this series referred to the policies but did not provide links.

So, in the interest of education, our Expert Witness Guidelines for the specialty of Emergency Medicine (www.acep.org/Clinical—Practice-Management/Expert-Witness-Guidelines-for-the-Specialty-of-Emergency-Medicine/) require that in order to qualify as an expert witness in emergency medicine, a physician should be currently licensed in a state, territory, or area constituting legal jurisdiction of the United States as a doctor of medicine or osteopathic medicine and be certified by a recognized certifying body in emergency medicine.

Further, our guidelines stipulate that the potential expert witness should be in the active clinical practice of emergency medicine for three years immediately preceding the date of the event giving rise to the case (e.g. neither newly graduated nor retired nor pursuing a second career as an expert witness).

Further, an expert witness should possess current experience and ongoing knowledge in the area in which he or she is asked to testify. In other words, an expert witness in emergency medicine should not be testifying as to the standard of care in a case involving another specialty or profession unless that witness is also qualified and currently practicing in that specialty or profession.

An expert witness should not provide expert medical testimony that is false, misleading, or without medical foundation. This is fairly self-explanatory, but it is possible to give false or misleading testimony if all details about a case are not known by the physician prior to offering an expert opinion or testimony. Not all attorneys provide all records, depositions, and supporting material such as imaging studies to a reviewing expert because of the time and expense involved.

The key to fulfilling this obligation is a thorough review of all available and appropriate medical records and contemporaneous literature concerning the case being examined, even if such is not initially provided by the attorney seeking review. A secondary obligation is the obligation to revise an opinion, even as late as at trial, if newly uncovered evidence leads the expert to an opposing view.

A medical expert’s opinion should reflect the state of medical knowledge at the time of the event giving rise to the case, which may have occurred some years prior to the trial of a claim, especially in pediatric cases where there is an extended statute of limitations. So a physician who, for example, was still an undergraduate during the event which gave rise to a case, would not under our guidelines be qualified to testify.

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 either the plaintiff or the defendant.

This goes back to a previous requirement regarding truthfulness, but also refers to the fact that a physician can be misled to favor one party or the other when not provided with all the details in a case. A related point is that a witness can be unwittingly led towards a certain conclusion before reviewing any materials in a case, as for example when the consulting attorney describes his or her own theory upon initial contact with a prospective witness.

Ideally, when a physician is contacted by an attorney with a potential case to review, the physician should interrupt almost immediately and ask the attorney not to reveal anything about the case except that which is necessary to nsure emergency medicine is the appropriate expertise required and that there is no conflict of interest. So, the physician should ask, “What type of specialist is the defendant whose care you are asking me to evaluate, who are the parties to the case, who are the attorneys involved, how much material is currently accumulated, and what is your deadline for review? That is all that I want to know at this point.”

Expert witnesses should be chosen on the basis of their experience in the area in which they are providing testimony, and not on the basis of offices or positions held in medical specialty societies, unless such positions are material to the expertise of the witness. This refers to the fact that holding a leadership position in ACEP does not in itself qualify one as an expert in emergency medicine.

Since 2003, ACEP policy, “College Board Member and Officer Expert Testimony” (http://www.acep.org/ Clinical—Practice-Management/College-Board-Member-and-Officer-Expert-Testimony) has required that leaders recuse themselves from such service absent approval of the Board, because of the potential for conflict of interest.

Nothing prevents an ACEP member from advertising availability as an expert witness, if qualified. However, an emergency physician should not engage in advertising or solicit employment as an expert witness where such advertising or solicitation contains false or deceptive representations about the physician’s qualifications, experience, titles or background.

This would include use of expired honorific titles, such as FACEP, or board certification in emergency medicine, which may for example have lapsed.

Our guidelines require that the expert witness should be willing to submit the transcripts of depositions and testimony to peer review. This forms the basis for both of our review mechanisms for expert testimony. Like all other specialty societies, ACEP requires that an expert witness should never accept any compensation arrangement that is contingent on the outcome of litigation. Our guidelines also stipulate that misconduct as an expert, including the provision of false, fraudulent, or misleading testimony, may expose the physician to disciplinary action.

Expert Witness ReAffirmation Statement

The Expert Witness ReAffirmation Statement (www.acep.org/expertwitness.aspx), which every member signs upon application or renewal of their ACEP membership, tracks the provisions of the Expert Witness Guidelines. Thus, every member of ACEP is bound by our guidelines. Every attorney who participates in emergency medicine cases should be aware of the ReAffirmation Statement, and is welcome to use it in deposition or trial whether the opposing witness is for plaintiff or defense, and it can even be used as a hypothetical with a non–ACEP member emergency physician.

Perhaps tellingly, in ACEP’s survey, more than 50% of those members who serve as experts do not keep any record of their cases (although this is required by federal courts), and fewer than 30% have preserved copies of their 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.

More than 60% reported that their compensation schedule as an expert varied depending on whether testimony was required.

Because of antitrust considerations, ACEP does not and could not legally suggest a fee schedule for members who serve as expert witnesses.

It appears from other specialties that there is essentially no limit to what an expert can demand, which is one of the reasons that expert testimony has become such a popular sideline. However, any expert should be prepared to explain to a jury the basis for the fee schedule that they follow.

Nearly three-quarters of our survey respondents reported that the fact of their participation as an expert witness had never been made public in any way, and 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.

ACEP has two mechanisms for review of expert testimony. The first is contained in the Procedures for Addressing Charges of Ethical Violations and Other Misconduct (www.acep.org/Clinical—Practice-Management/Procedures-for-Addressing-Charges-of-Ethical-Violations-and-Other-Misconduct).

The second is the Procedures for Review of Testimony Regarding the Standard of Care in Emergency Medicine (www.acep.org/Clinical-Practice-Management/Procedure-for-Review-of-Testimony-Regarding-Standard-of-Care-in-Emergency-Medicine).

Dr. Andrew is a past Council Speaker, chair of the ACEP Well-Being Committee, a senior member of the Medical Legal Committee and the editor of LegalEase. She is a founder and past president of the Coalition and Center for Ethical Medical Testimony and the principal of www.MDMentor.com, which assists physicians dealing with medical legal issues. In the first two installments of this Expert Witness series, Dr. Andrew’s J.D. credential was inadvertently omitted. ACEP News regrets the error.

About LegalEase: ACEP’s Medical Legal Committee sponsors these articles addressing topics of interest to ACEP members. If you have legal questions you would like discussed in print, please submit them to Dr. Louise B. Andrew at acep@mdmentor.com. Please don’t disclose any details of a pending legal case.