Physicians loathe many aspects of the American system of jurisprudence. Whenever a malpractice claim is made, a physician feels profound betrayal – by the patient or patient’s family, by any or all other providers who were involved in the patient’s care (especially if they are not named in the suit), by the institution where the alleged malpractice occurred (if there were systems issues involved), and by all lawyers.

However, by far the most stinging betrayal that is sensed by physician defendants is that perpetrated by the opposing expert witness.

Most physicians first are drawn into serving as expert witnesses when an attorney calls to discuss a case and asks for assistance. If they agree to evaluate a case, many do so with no real understanding of what is required by law of an expert. The attorney may state that what is needed is merely an opinion regarding the standard of care, which seems straightforward enough. If you poll practicing physicians, they usually believe that they know the standard of care within their specialty. However, many do not understand that the legal standard of care is quite a different thing from what they may have been taught is the most appropriate medical care for any given condition.

Most states have a definition of the standard of care that is some version of “that degree of care that would be shown by a reasonably competent practitioner practicing under the same or similar circumstances.” Not that degree of care we teach you to practice or that is promulgated in textbooks.

This legal standard is, in fact, a very low bar. But the law in medical malpractice cases says that a physician defendant who meets this standard is not guilty of negligence. I have found that defense attorneys are very quick to educate their potential experts on this point, but that plaintiff attorneys may never define the term legally.

After all, if the care provided was reasonable, there may be no award even when there was a catastrophic outcome. So, 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. Certainly, no one taught me that there was a substantial difference between what we would believe to be a medical standard of care and the legal definition of the medical standard of care.

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.

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.

Part II of this article next month will address: What can you do about an unethical expert after the trial or settlement?

Dr. Andrew is past Council Speaker who currently chairs the Professional Well-Being Committee. She is a senior member of the Medical Legal Committee and the editor of LegalEase. She is also 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 all aspects of 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.