Fortunately, this has changed as a result of efforts by members and leaders of this College. Every emergency physician who is an ACEP member has signed or assented to an Affirmation/Reaffirmation statement concomitant with membership application AND renewal, stating that the member will abide by all principles of ethics of the College, including those relating to expert witness testimony. A copy of the statement can be legally introduced at deposition or at trial. This act puts the unaware witness on notice that his or her testimony is subject to both peer review and ethical review by ACEP. There are reports of at least one expert who withdrew from a case when confronted with this document at deposition, realizing that the “rules of engagement” had changed.

Another tactic is to consult one of several legal databases maintained by attorneys containing copies of depositions by any given expert. Sometimes (as with my first “expert”), the sheer volume of cases and the obvious predisposition to plaintiff cases can be used to impeach an expert in court.

In federal court, an expert witness is required to produce a list of all cases in which he or she has testified and the side for which s/he testified. Unfortunately, the vast majority of malpractice cases are tried in state courts, but in the occasional case this can prove to be helpful information.

Something that the emergency physician defendant can do for him/herself while the case is pending is to search all of the available literature authored by the “expert” to see whether any statements made in print might contradict any proposed testimony, which would allow the attorney to “impeach” (call into question the credibility of) the witness. Another is to access the medical board website where the expert is licensed in order to determine whether there are any disciplinary actions against the physician.

Certainly, you should always assist the attorney in locating the best possible experts on your own behalf, especially those who have sterling credentials, and ideally publications involving cases similar to yours.

It never hurts to attend the deposition of a scurrilous expert, if you can stand to do so. Although you obviously cannot in any way interact with the expert (even dirty looks could be interpreted as witness intimidation), you can certainly alert your attorney to untruths as they are said, giving him or her greater ability to impeach the expert immediately in this setting. It certainly puts the expert on notice that his or her testimony is not going to remain behind closed doors.