[Editor’s Note: Last month’s column discussed dealing with an unethical expert before a trial.]

What can you do about an unethical expert after the trial or settlement?

Regardless of the outcome of the case, after it is concluded, you have several more options. If the expert is an ACEP member, you can request an ethical review of the expert’s testimony through the College.

If testimony does not comport with the ethics policies of ACEP, some form of discipline may result, which would make future testimony less credible. Indeed, discipline by a medical association is actually reportable to the National Practitioner Databank, so it could even affect future licensure and practice by that physician.

A number of other specialty societies have some sort of ethics review in place, so if the “expert” is not an ACEP member, you can investigate reporting to another society as a possibility. However, in general no medical society is going to accept an ethical complaint lodged by someone who is not a member.

You can consider lodging a complaint with the medical board where the expert is licensed. For obvious reasons, “experts” are often recruited from places other than the location of the alleged malpractice. Several states, including Florida and Ohio, require at least a limited licensure in the state for any expert who is going to testify in the state. These regulations were passed specifically to give boards the authority to discipline dishonest or unethical experts. Most state medical practice acts proscribe unethical conduct such as misrepresentation and testifying falsely; however, the vast majority of medical boards has intervened only in cases of falsification of credentials by experts, and declined to become involved where testimony is alleged to be dishonest or unethical.

ACEP has a rather unique program called “Standard of Care Review” whereby a member can anonymously request a review of questionable testimony by an “expert” by a committee of members. Although the entire process is blinded and no discipline can result, there will be an educational process, as the findings of these reviews are published for everyone’s benefit.

This program was designed to help educate practitioners as to the actual standard of care as judged by a committee of peers, and also to put those who wish to serve as experts on notice that testimony is being actively reviewed for veracity and credibility.

Although in our 2010 Medical Legal survey we found a surprisingly minimal awareness by members of available services and resources relating to expert witnesses, there is actually a wealth of information at www.acep.org, including several comprehensive articles previously published in ACEP News on the topic. One of the most important resources is the ACEP Expert Witness Guidelines.

If you seek a very comprehensive EM article on the topic, you may wish to consult one by this author. “Opinion for Sale: Confessions of an Expert Witness” illustrates how seductive the role of an expert can be, and how “success” as an expert perpetuates a lucrative sideline, while honesty and objectivity may truncate this line of business. The most comprehensive and interesting article I have ever read on the entire subject of why and how physicians become expert witnesses and the many pitfalls to be faced is called “Expert Evidence” in the Wisconsin Law Review by professor Samuel R. Gross.

Like most law review articles, it is not for the faint of heart. But this excellent article explains in great depth why it is that certain physicians are drawn to the expert witness role, but how they are often co-opted into becoming advocates for one side while forgetting that their legal role is to be a neutral educator of the court.

Says Gross: “To put it bluntly, in many professions, service as an expert witness is not generally considered honest work. Experts in other fields see lawyers as unprincipled manipulators of their disciplines, and lawyers and experts alike see expert witnesses – those members of other learned professions who will consort with lawyers – as whores. The best that anyone has to say about this system is that it is not as bad as it seems, and that other methods may be worse.”

It may sound as if I am vilifying the expert witness role in medical malpractice. I am not. I served as an expert witness in a number of cases during the height of my career. I have taught many groups the principles of being an ethical expert. I even ran an organization of physicians and attorneys who were interested in improving the legal system by helping to educate would be experts and to expose “testiliars.” I firmly believe that if we are to help the legal system, however flawed, to function more effectively, that physicians in good standing have an obligation to serve the courts as medical experts.

However, they should not enter into the role blindly. They should not consider an expert witness practice to be a second career or retirement plan, and they should not allow themselves to be misled in any of the myriad ways possible, by goal-directed attorneys for whom winning is more important than remaining ethical.

If you are considering the role, you should read extensively about the legal role of the medical expert, you should develop a set of guidelines for yourself designed to minimize the risks of accidental advocacy, and be sure that you are thoroughly aware of and follow the ethical guidelines and policies of ACEP before you agree to evaluate a case. It is only by encouraging honest and ethical testimony by properly credentialed and principled emergency physicians that we can begin to rid the system of those who are not (these are the “enemies” – we HOPE not us!), and can improve the fairness and effectiveness of the flawed legal system under which we are all forced to labor.

ACEP’s Forensic Medicine section is interested in educating members about the role of the expert witness, both in forensic matters and in medical malpractice. If you are interested in learning how to be an ethical expert, you may want to explore the possibility of joining this section.

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.

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.