On the other hand, some things are actively taught in medical curricula that are patently absurd. A recurring misstatement of the “standard of care” is an oft-repeated legal fiction that every physician has heard from well intentioned risk managers and even faculty. It is something that I call the “IDWD statement,” which is the claim that “If It Isn’t Documented, It Wasn’t Done.”

I would like to see this claim (or any version of it) banned from all medical curricula and the tongue cut out of any “expert” who utters it, because anyone who has ever practiced medicine knows that it is categorically impossible to document every single element of any encounter with any patient. Yet, when a case hinges on documentation of some significant element, a duplicitous expert, guided by an avaricious attorney, will almost always fall back on this lie. If the expert is credible and convincing, a jury may believe the lie, because it feeds into a comforting fantasy nurtured by all patients and would-be patients (for example, jurors) that medical care can be perfect and that therefore records should likewise be perfect (and of course, perfectly complete).

‘Goal-oriented attorneys often push to label reasonably competent care as substandard care. Or sometimes, substandard care as reasonably competent care – it cuts both ways.’

What if you are confronted with an unethical expert before trial?

What should an emergency physician do when an expert witness testifies falsely or unethically against him? First and most importantly, you must do NOTHING yourself while the case is still pending. The outrage may be great, but doing anything whatsoever during the case that could discredit the witness, affect his or her reputation or job or professional standing, is a legal minefield.

Physicians who have, for example, communicated with the expert or the expert’s employer or medical institution or medical society during a case, have been charged with witness tampering and have been forced to settle non-meritorious cases.

In one case against a well-respected emergency physician, the forced (and wrongful) settlement of a completely frivolous case hinging on scurrilous testimony of a marginally qualified and unethical witness, whom the defendant had tried to discredit, resulted in suicide.

While the defendant can do nothing, there are several things that the defense attorney can do. For many years, “expert” witnesses were able to testify freely without any concern that their testimony would ever be revealed to anyone other than those in the courtroom.