ACEP has a formal procedure for addressing charges of ethical violations among ACEP members under the Code of Ethics for Emergency Physicians. The Code of Ethics describes principles of ethics, foundations of ethics, and a Policy Compendium.
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ACEP Now: Vol 37 – No 10 – October 2018ACEP addresses complaints related to the Code of Ethics and to ACEP’s Expert Witness Guidelines for the specialty of emergency medicine. These two guiding documents describe the role of individuals who are asked to render expert opinion regarding the practice of emergency medicine. The policy states that the expert witness “should review the medical facts in a thorough, fair, and objective manner” and “should not provide expert medical testimony that is false, misleading, or without medical foundation.”
The mechanism by which ACEP addresses ethics complaints is detailed in the executive document, Procedures for Addressing Charges of Ethical Violations and Other Misconduct.
Between 2001 and 2017, 14 ethics charges have been processed. All claims involved alleged unethical expert witness testimony. In addition, there were eight incomplete complaints that were not formally adjudicated by the Ethics Committee due to inadequate information from the complainant.
An understanding of ACEP’s Code of Ethics is important for all ACEP members so they can abide by it to protect our patients, ourselves, our colleagues, and the specialty of emergency medicine.
ACEP Expert Witness Guidelines
ACEP has written guidelines for emergency physicians to follow when providing expert witness testimony. These guidelines were originally approved by the ACEP Board of Directors (BOD) in 1990, and revised and approved in 1995, 2000, 2010, and 2015.
As expert witnesses, emergency physicians are asked to opine on standard-of-care questions pertaining to emergency medicine in cases of medical malpractice.
ACEP has established the following criteria to qualify as an expert witness:
- Be currently licensed in the United States as an MD or DO.
- Be certified by a recognized certifying body in emergency medicine.
- Be active in clinical practice for at least three years, outside of training, immediately preceding the date of the events in the case.
- Be chosen on the basis of expertise, not offices or positions held.
ACEP also outlines guidelines for expert witnesses to follow during a case:
- Possess current expertise and ongoing knowledge in area of the testimony.
- Give testimony that reflects the state of medical knowledge at the time of event.
- Review the medical facts in a thorough, fair, and objective manner and not exclude any relevant information.
- Be willing to have the transcripts of depositions and trial testimony subject to peer review.
- Do not provide testimony that is false or misleading, and do not falsely advertise oneself.
- Do not charge a fee contingent on a particular outcome.
Process for Adjudication of Ethics Complaints
There is a process for ACEP members to file a complaint alleging that another member has violated one of the College’s policies regarding ethical conduct. The details of the complete process for filing a complaint about a violation of the ACEP Code of Ethics can be found online at www.acep.org/ethicalcomplaints. It is important to note that these policies govern the behavior of ACEP members, and non-members are not subject to those policies. Only a member can report a violation and such alleged violations must be committed by a member.
Who Will Assess the Conduct of the Member Charged with an Ethics Violation?
Usually, this responsibility falls to an Ethics Committee subcommittee after the member filing the complaint (complainant) and the member against whom the complaint is filed (respondent) provide all relevant documentation in support of their respective positions. The subcommittee determines whether the College ethics policies apply and makes a recommendation to the ACEP BOD regarding whether the alleged behavior is a violation of the policies and whether the alleged conduct justifies sanctioning the respondent member. If there is a minority opinion on the case, the dissenting subcommittee members are encouraged to draft their minority opinion for consideration by the BOD, which makes the final determination of whether an ethics violation has occurred and whether disciplinary action is warranted.
Ethical Violations Not Involving Expert Witness Testimony
The table below provides examples of violations of ethical obligations, other than giving false or misleading expert witness testimony, contained within the ACEP Code of Ethics and in multiple policies in the ACEP Policy Compendium.
| Ethical Obligations | Examples | Violations |
|---|---|---|
| Personal and Professional Conduct | An emergency physician reviews a record of a patient for whom they have no responsibility with regard to clinical care, education, research, or quality assurance. | Violation of patient confidentiality. |
| An emergency physician treats a patient unfairly because of his or her race, color, creed, gender, nationality, or other patient characteristic. | Discrimination evident in provision of patient care. | |
| An emergency physician commits a crime of moral turpitude, such as sexual misconduct, leaving the scene of an accident, homicide, etc. | Criminal charges and/or convictions. | |
| Clinical Care | An emergency physician records an interaction with a patient without his or her consent. | Commercial recording without consent. |
| An emergency physician discloses test results to authorities without due process and chain of custody protections to ensure patient confidentiality. | Cooperation with law enforcement at the expense of the patient. | |
| Commercial Relationships and Interactions with Society | An emergency physician makes a treatment choice based on a gift accepted from industry. | Conflict of interest. |
Sanctions of Ethics Complaints
Ethics complaints may result in one of several different sanctions including: censure, suspension, or expulsion.
Censure may be public or private. In a private censure, the member receives a letter informing them how their conduct is not in conformity with ACEP’s Code of Ethics. The contents of the letter will not be disclosed, but the fact of the letter’s issuance and the name of the recipient will be disclosed. The letter will detail expectations of future behavior, including a warning of more serious consequences for continued violation of ACEP’s ethical standards. A public censure involves a similarly styled letter. However, its contents will be disclosed publically as part of the disciplinary action.
If a member’s behavior is found to warrant suspension, the suspension period from ACEP membership is 12 months. After 12 months, the member will be offered reinstatement, and will be processed in the same manner as other lapsed memberships. In extreme cases, expulsion may be warranted. The expulsion period is five years, after which the member may petition the BOD for readmission to ACEP.
Matters of suspension and expulsion are much more serious concerns. The dates of suspension or expulsion, whether or not the member was reinstated, and the basis for the action will be publicly disclosed. In addition, ACEP must report suspensions and expulsions to the Boards of Medical Examiners in the states where the physicians are licensed. This, in turn, will likely result in a report to the National Practitioner Data Bank. These reports must be disclosed and explained on most licensure and medical staff applications and renewals of licensure and facility credentials.
Future Directions
Ethics violations and claims have a considerable potential impact on College members, including those not involved with the case. Censure, or other public or private discipline of a College member, can be scandalous to the College and specialty. These consequences may tarnish the reputation of members. Conversely, the College can be strengthened by showing members that maintaining professional and personal integrity by upholding the Code of Ethics is foundational to ACEP’s organizational well-being. It is paramount that there be transparent and timely communication and education for members interested in providing expert witness testimony, as well as for those motivated to file ethics complaints through the College.
Communication should ideally be focused on keeping ACEP members up to date on the process and outcomes of ethics charges, while maintaining the integrity of due process and protecting the rights and the privacy of the members involved in an ethics complaint. Additionally, the communication process should aim to avoid tarnishing the reputation of the parties involved, including the member(s) bringing the ethics complaint, those adjudicating the charge, and the individual against whom the complaint has been lodged. This communication should be timely and as complete as possible, while advancing the aforementioned goals.
ACEP’s Code of Ethics applies to all members of the College and helps to maintain and encourage the ethical practice of emergency medicine. It is important for members to be aware of the policies and procedures governing the College’s approach to ethics and ethics complaints.
Dr. Kraus is at Geisinger in Danville, Pennsylvania.
Dr. Aberger is at St. Joseph’s Regional Medical Center in Paterson, New Jersey.
Dr. Brenner is at SUNY-Upstate in Syracuse, New York.
Dr. Marco is at Wright State University in Dayton, Ohio.
Dr. Schears is the chair of the ACEP Ethics Committee.
Dr. Simon is at Columbia University in New York City. All authors are members of the ACEP Ethics Committee
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One Response to “How Does ACEP’s Code of Ethics Apply to Me?”
September 16, 2018
Thomas BenzoniEditor:
There is one glaring hole in the ethics article presented that is of legacy origin.
Physicians who do not come inter ACEP, SAEM, ABEM, or AOBEM jurisdiction will give testimony against EM physicians, claiming they, too, can opine on our area of practice.
ACEP BOD several years ago put in place a mechanism whereby a complaint against a non-EM physician can be routed to that physician’s specialty board and/or society for action; please publish this action.
Before this was available, physicians in other areas of practice could testify against us with impunity; we had no standing as individuals to complain and their boards took no action.
This is powerful weapon of which we should avail ourselves.