ED physicians as expert witnesses: If you can’t beat them, join them
ED physicians as expert witnesses: If you can’t beat them, join them
By Jonathan D. Lawrence, MD, JD, FACEP, Emergency Physician, St. Mary Medical Center, Medical-Legal Consultant, Long Beach, CA
There’s no question about it. An accusation of professional negligence (malpractice) against an emergency physician is a stressful event. Not only does such an event take up the physician’s time and energy, but most physicians feel personally offended by an allegation of malpractice. There is no lessening of anxiety when the defense attorney proposes a nominal settlement "to make the case go away," knowing that such a settlement will be reported to the National Practitioner Data Bank (NPDB). Recent calls in Congress to open the NPDB to public scrutiny have done nothing but deepen those fears. The fact that the settlement makes "economic sense" is of little comfort. Physicians wonder if a judgment against them, or settlement, will affect their reputation among their peers, and no physician wants to spend the rest of his or her career explaining the case to credentialing committees and/or other agencies (e.g., state licensing boards).
On top of all those anxieties, if the case is one of the 10% or so that actually goes to trial, the distress level escalates. Few physicians look forward to testifying on the witness stand and being examined by a seasoned trial attorney ready, willing, and able to twist the physician’s words to the plaintiff’s advantage. The natural inclination to respond by defending oneself against accusations by using verbally combative behavior on the witness stand is often self-defeating in front of a jury, not to mention the fact that most physicians are no match for a good trial attorney. Physicians are trained to cooperate; in our adversarial legal system, trial attorneys are trained to argue. Bottling up this anger without any means of release adds to the pressure.
The final straw in this scenario is the testimony of the expert witness. Many a physician has listened to an expert criticizing his or her care and must have wondered if they were both practicing medicine on the same planet. Why do the courts need experts? Who are those experts? Where do they come from, what are their qualifications, and upon what do they base their testimony? What can an emergency physician do if he or she feels the testimony of an expert is outrageous? This issue of ED Legal Letter explores the world of experts and expert testimony, in particular, the emergency physician as an expert witness.
Why Are Experts Needed?
Our legal system is based on the English adversary system where an aggrieved party has the right to bring a defendant to court for trial before a "jury of peers" that determines what the facts are and if compensation should be paid or other remedy effected. Originally, in theory anyway, the system worked well because, in the pre-industrial age, most of the "peers" in the jury had a knowledge base that allowed for an informed decision based on the facts of the case. (The obvious and significant issue that, by definition, "peers" were only deemed to be white male property owners will not be addressed here.) Problems started to arise during the industrial revolution as our society became more complex and specialized. Increasingly, the questions posed to the jury were beyond their areas of knowledge or experience. The solution was to allow an expert with specialized knowledge, training, or experience to explain the technical facts to the jury. Often, in nonmedical malpractice personal injury claims, the question as to whether an expert is needed takes a considerable part of the court’s time. Today, almost universally, the courts require experts to explain medical facts to the jury in medical malpractice cases.
Although an emergency physician expert witness is most visible in malpractice actions against another emergency physician, emergency physician experts may be permitted to testify in any number of other types of cases. Emergency physicians have knowledge of paramedic practice, as well as the standard of care required of other health care professionals in the emergency department, including nurses, emergency medical technicians, and X-ray, respiratory, and other technicians. Thus, emergency physicians may be called upon to testify in malpractice actions against these other providers. Attorneys may wish to have the jury hear a physician as an expert instead of an allied health professional who also would be qualified to testify. Emergency physicians also have special knowledge of the business of emergency practice, from financial and contractual arrangements to administrative decisions made by emergency department directors. As a result, emergency physicians may be called upon to testify in contractual or administrative actions related to the emergency department.
With some regularity, an emergency physician, who otherwise does not routinely provide expert testimony, will be called upon to testify as an expert in a criminal matter, such as assault (sexual and otherwise), battery, child abuse, or homicide. While the emergency physician might believe he or she does not have the expertise to testify in such a case, the court will likely consider the physician to be an expert, even if his or her involvement in the case was only as the treating physician. Therefore, emergency physicians are well-advised to have at least a rudimentary knowledge of ballistics and characteristic injury patterns caused by various weapons, for example the difference between entrance and exit wounds.
The emergency physician may be subpoenaed to appear in front of a number of other judicial venues to offer factual testimony, such as administrative hearings in licensure disputes, and may volunteer expert opinions under such circumstances. Finally, the emergency physician may be asked expert opinions in civil matters, when the physician has been the treating physician (percipient witness) but not the target of a malpractice accusation. Again, expert testimony in this situation would be on a voluntary basis.
State law varies as to whether defendant treating physicians who have not been designated as experts may be asked expert opinion. In California, for example, the defendant is presumed to be an expert, even if not designated as such, and may be asked opinions normally reserved for designated experts. The defendant may then demand expert fees if asked such opinions.1 Sometimes the dividing line between percipient and expert testimony is a fine one. Technically, a percipient witness may only be asked about what he or she "perceived." That perception would include impressions gleaned from the senses (sight, sound, touch, etc.) and actions taken, such as tests ordered and their results, as well as treatments undertaken and the outcome of those treatments. Percipient witnesses may not normally be asked opinions about the standard of care, either their own or of other health care providers. Nor may they opine about the future needs of the patient. Hypothetical questions may only be asked of experts (e.g., "Assume the patient had symptoms a, b, c and signs x, y, z; should the patient, in your opinion, have been admitted instead of discharged?"). The focus of this article, however, is the expert who offers opinions in a medical malpractice case. Since malpractice is a personal injury claim based on the tort of negligence, experts may be called upon to testify as to any of the four elements the plaintiff is required to prove: duty, breach of standard of care, proximate cause, and damages. Quite often, one expert will testify as to duty and breach, while another will cover causation and medical damages. More often than not, an economist will be brought in to explain the damages in monetary terms. Depending on the jurisdiction, the court may appoint an expert2 or the parties may provide their own. Since neither party will put forward an expert who will not support its case, the jury must deal with the spectacle of "dueling experts." The jury is then entitled to believe one or the other or neither expert based on their perceptions of the experts’ qualifications, reasoning behind their opinions, and their credibility. In California, the jury is instructed how to evaluate expert opinion as follows:
• You must determine the standard of professional learning, skill, and care required of the defendant only from the opinions of the physicians (including the defendant) who have testified as expert witnesses as to such standard.
• You should consider each such opinion and should weigh the qualifications of the witness and the reasons given for his opinion. Give each opinion the weight to which you deem it entitled.
• You must resolve any conflict in the testimony of the witnesses by weighing each of the opinions expressed against the others, taking into consideration the reasons given for the opinion, the facts relied upon by the witness, and the relative credibility, special knowledge, skill, experience, training, and education of the witness.3
Since unopposed expert opinion is generally binding upon the jury (i.e., the jury must accept as true the opinions of the expert),4 a party entering a malpractice suit without an expert nearly always will lose.
The court presumes that, in a medical malpractice case, an expert is required to provide an explanation of the medical facts to the jury. In the "layman’s exception" to this presumption, the court determines that the medical facts are so obvious that they come within the common knowledge of laypersons. In such a circumstance, no expert opinion is required. That is, the jury may interpret the medical facts in the case based upon their own expertise. If the court determines the medical issue involved is beyond a layman’s expertise, experts will be required to explain the facts to the jury.
A typical example where the layman’s exception might be applicable is when a sponge or other foreign body is inadvertently left in a surgical wound. A recent Tennessee case involved this issue.5 In this case, a woman sued because a sponge was left in her vagina after an episiotomy. The Tennessee Court of Appeals declared that, although no expert would be required to determine that it was negligent to leave a sponge in an abdomen after a laparotomy, the same could not be said of an intravaginal sponge, where there might be a perfectly reasonable medical indication for having left the sponge. Therefore, expert testimony was required. Since the plaintiff had no expert witness, she could not refute the expert testimony of the defendant, and the trial court’s summary judgment for the defendant physician was upheld.
Examples falling under the "layman’s exception" include failure to X-ray a traumatic injury,6 administering an anesthetic with an unsterile needle,7 operating on the wrong lumbar disc,8 instilling caustic material in the eye,9 and falling out of a treatment chair.10 These "layman’s exception" cases are rare and, therefore, most malpractice lawsuits brought against emergency physicians will involve the use of expert witnesses.
Junk Science
A brief word is appropriate here about "junk science." The recent spectacle of breast implant litigation highlights this recurring challenge for the justice system. Juries were convinced to award huge sums to women who claimed to be harmed by silicone breast implants on the basis of testimony from experts who had no reasonable scientific basis for their opinions. This situation most often arises in the context of causation, in which an expert posits an unproven or novel theory of how the supposed breach of the standard of care caused the plaintiff’s injuries. Since medical science is inexact, the actual cause of the plaintiff’s injuries may not be known.
Courts have wrestled for a long time with the question of when to admit scientific theories of causation. The current federal standard was established by Federal Rule of Evidence 702 and elucidated in Daubert v. Merrill Dow Pharmaceuticals.11 In this case, parents of children with birth defects attempted to recover damages from the manufacturer of doxylamine/pyridoxine (Bendectin), a medication then commonly prescribed for morning sickness. The trial court granted summary judgment on behalf of the defendant drug company based on the lack of credible expert testimony, and the plaintiffs appealed. In affirming the trial court’s decision, the Ninth Circuit Court of Appeals established the current criterion for admitting expert scientific testimony. Under the Daubert standard, for expert scientific testimony to be admitted, the judge must determine that the expert’s opinion reflects "scientific knowledge," that the opinion was "derived by the scientific method," and that the expert’s work amounts to "good science."12
The implication of the Daubert case for experts testifying in medical malpractice cases is that, for expert medical testimony to be admitted, it must be defensible on the basis of sound medical and scientific principles. Even if admitted, a theory will be attacked by opposing counsel (under the guidance of the opposing expert) and the expert’s credibility will be brought into question. It should be noted that the Daubert decision was a Ninth Circuit federal case and thus, technically, is applicable only to federal cases within that circuit, while the vast majority of medical malpractice cases are tried at in state courts. Nonetheless, many, if not most, states follow similar requirements.
Who is an Expert?
The simple answer to "Who is an expert?" is sometimes "anyone who claims to be one." In many, if not most, jurisdictions, any licensed physician can be an expert witness in support of or critical of any other health care worker. This is particularly galling to emergency physicians who bristle at the idea of "Monday morning quarterbacks" second-guessing decisions made under pressures of limited time and incomplete information. This has led to numerous situations where subspecialists, including, among others, oral surgeons13 and pediatricians,14 are permitted to criticize emergency physician care. Of course, this is a two-way street. Emergency physicians have been found competent to testify against other specialists, including plastic surgeons15 and neurosurgeons.16 In some situations, the specialist may only be permitted to testify on causation, that is, how the actions of the emergency physician are alleged to have resulted in the injury to the patient, but not on whether the emergency physician met the standard of practice. This also presents a "two-way street" in another sense: The emergency physician may offer the testimony of subspecialists in his or her defense. In some states, the legislature has imposed statutory restrictions on who may be qualified to testify as an expert witness. This is discussed in further detail below.
In all jurisdictions, the court, not the jury, deter-mines who is qualified as an expert, even though the attorneys may ask the expert about his or her credentials. The judge is given wide latitude in making that decision. If one party wishes to challenge the qualifications of the opposing party’s expert, such a challenge takes the form of a preliminary examination of the proposed expert outside the presence of the jury. Such a procedure is know as voir dire (pronounced vwar dire). The party challenging the qualifications of the witness as an expert will question the proposed expert witness. The parties will make their arguments, and the judge subsequently will make a decision about whether the expert is qualified (i.e., allowed to testify). If not, the jury will not hear the expert’s testimony.
A few states have placed restrictions on the kind of physicians that may offer expert testimony against other physicians. Most, however, have avoided any such limits. California was the first with a statute preventing the second-guessing of emergency physicians by other specialists.17 Under this law, only physicians with five years of "substantial experience" at an acute care hospital emergency department may testify against an emergency physician accused of malpractice. Florida has a similar statute, but broadens the restriction on behalf of all specialists, such that only a specialist in the defendant’s specialty may testify against a specialist.18 Those statues often catch inexperienced plaintiff’s lawyers unaware, who subsequently find their "star witness" excluded from testifying.
Where Do Experts Come From?
As noted, by virtue of the fact that all physicians have specialized knowledge and training, any physician, in theory, can be an expert. Various factors enter into an attorney’s decision to hire a particular expert. Many lawyers depend on word-of-mouth advice from colleagues to recommend a physician expert who has been "battle-proven." Others have personal contacts among friends and family. Often, attorneys consult agencies who have a "stable" of experts in various fields and, for a fee, will provide the expert to the attorney. Although this is a convenient way for physicians wishing expert work to get acquainted with the legal community, the pitfall is being accused of being a "hired gun" at deposition or trial. Other attorneys scan the legal journals and newspapers for recent cases similar to their own and call the expert who testified in that case.
The facts of the case determine, many times, the type of expert required. Impeccable academic credentials are not a prerequisite to being an expert. In fact, depending on the case, academic credentials might be a detriment. An attorney defending a community hospital-based emergency physician might wish to have a community hospital-based expert who "slugs it out in the trenches" on a daily basis to counter the erudite position of the plaintiff’s university-based expert. Tactically, that may be wise since the jury may observe that the plaintiff’s expert does not practice in the same milieu as the defendant and may not be familiar with the standard of practice at the community level. In general, plaintiffs tend to seek the academically oriented experts, while the defense searches for the expert who is familiar with the broader community standard. Academically based experts sometimes forget the legal definition of standard of practice. It is defined as the care and skill ordinarily used by reputable emergency physicians practicing in the same or similar locality and under same or similar circumstances.19 Thus, ivory-tower experts may inadvertently set up a standard that is not met by a majority of emergency physicians. Opposing counsel will take pains to point this out on cross-examination.
A question often raised is whether an expert from New York, for example, can adequately testify as to the standard of practice in Texas. Legally this is known as the locality rule vs. national standard of practice. States have generally adopted a national standard of practice for specialists. The courts have reasoned that specialist training and board examination are national in scope. Thus, the question that remains for the expert is whether his or her own practice is similar to the defendant’s. Similar practice in that regard refers more to the type of practice than the geographical setting. Thus, for example, a physician practicing in an urban teaching hospital in Detroit would be held to the same standard as another physician at an urban teaching hospital in New Orleans. If the practice of an expert is too dissimilar from the practice of the defendant emergency physician, the jury might as well be concerned that the expert doesn’t practice in "same or similar circumstances," and might place less weight on the validity of the testimony.
No matter how an expert is found, he or she must possess certain characteristics to be successful. First, a strong background with a broad knowledge base is required. Such qualifications are not the exclusive domain of academia. Board certification is generally not a requirement under the law, but lack of board certification would have to be "explained away" on the witness stand. Second, a relatively calm disposition, or at least the facade of one is necessary. Cross-examination can cause the weak of heart to wilt and the hot-headed to explode. Opposing counsel like nothing better than for the opposing expert to "lose it" on the stand in front of the jury. Third, an expert must have excellent language skills. As with patient education, difficult concepts often have to be explained to a jury with mixed educational backgrounds. The ability of an expert to simplify complex medical processes into everyday language is essential. Finally, as is often the case in this imperfect and media-driven world, attorneys may choose experts on the basis of appearance.
Why Do Experts Testify?
Any one or a combination of the following reasons explains most experts’ motivation:
1. Duty to the profession, the legal system, and society as a whole. Many experts believe that someone has to stand up and defend wrongly accused colleagues. Conversely, others believe that someone must help the system weed out and punish physicians who demonstrate a lack of skill or judgment in order to maintain the high reputation of the profession.
2. Improvement of their own practice. Many experts feel that that by reviewing the mistakes (real or alleged) of others, they improve their own practice skills. Driven by the principle of "but by the grace of God go I," those physicians gain a clearer understanding of the kinds of medical encounters that lead to litigation through expert review. Also, assisting with malpractice cases offers a convenient opportunity to review the current literature on a variety of topics.
3. Fascination with the legal system. Some experts are excited by the prospect of participating in the legal process. Whether it is by helping an attorney establish a case or by battling wits with opposing counsel, those experts truly enjoy their involvement with the legal system. Some go on to become attorneys themselves.
4. Remuneration. Experts usually are paid by the hour for all tasks they undertake. This includes record and deposition review, telephone and in-person conferences, literature searches, preparation of reports, depositions, trial testimony, travel time, and various extraneous expenses. This rate is usually higher then the per-hour rate emergency physicians receive for seeing patients. Lest anyone be tempted to give up one’s career in the "pits" for the cushy life of an expert, a dangerous "Catch-22" lurks. Opposing counsel will happily point out to the jury that you are a "professional witness," deriving most of your income from expert witness work, thus seriously undermining your credibility and chances for future work. In some states (e.g., Michigan), a physician will be precluded from testifying as an expert witness in a medical malpractice case if he or she is not actively practicing or teaching medicine.
5. Favor. Some physicians will review and testify as a favor to an attorney or patient.
6. Boredom. Some physicians see expert work as a welcome break from the established routine with an opportunity to do something completely different. Occasionally, even the opportunity to travel will arise.
7. The born educator. Some people just love to teach. Whether it is patients, residents, or anyone who will listen, these physicians see expert work as an extension of their desire to educate.
How the Ideal Expert Reviews a Case
1. The Initial Contact. By whatever means, an attorney finds out the name of a potential expert and contacts the physician by phone, e-mail, personal contact, an intermediary, or by mail. Before any details of the case are given, the physician must be sure that there are no conflicts of interest by ascertaining who the parties are and who the attorneys are. Those conflicts come in various varieties:
• Knowing one or more of the parties. More than a passing acquaintance of the plaintiff or any of the defendants likely will disqualify the physician from being an expert. There is no legal prohibition as such, but it is unlikely that an attorney would take the risk of the appearance of bias in front of the jury.
• Prior retention as an expert by another party in the same case. Experts must keep detailed records as to who the parties are in a particular lawsuit. Malpractice actions usually have multiple defendants, each with their own attorney. Each defendant, in turn, hires experts. It is not uncommon for some time to elapse between the initial contact and the delivery of records for the expert’s review. During that time, experts must be on guard for contacts from other parties who also wish a physician’s expert opinions. Unless the expert keeps records of all contacts, the potentially embarrassing situation of promising to review a case for more than one party may arise. (Occasionally, defendants will share an expert, but only if there is no potential for a conflict of interest between the defendants.)
• Financial conflicts. No attorney would relish trying to explain away to a jury that an expert had a financial interest in the outcome of a case. Under no circumstances should a physician accept payment for testimony and review on a contingency-fee basis. A contingency fee is an arrangement whereby the physician accepts payment "contingent" on the success of the party for whom he or she is testifying. The appearance of bias in such an arrangement is obvious. Contingency-fee arrangements are, of course, commonly used by plaintiffs’ attorneys for payment of their professional fees.
2. Fee Arrangements.
Fee arrangements are usually settled at the initial contact. An expert usually sets his or her fee based upon what is standard for experts in the community. A few inquiries usually reveal the going rate. Usually, the highest fees are garnered by the surgical specialties, often reaching the astronomical level of $1,000 per hour or higher. This is usually explained by the need to reschedule a day’s worth of surgery when the expert is called upon to meet with the attorney, give a deposition, or testify at a trial. Emergency physicians obviously cannot invoke this sort of logic in setting fees, but, nonetheless, fees in the $150 to $350 per-hour range are common for emergency physicians. Many experts charge one rate for record review and a higher rate for appearances, such as for depositions and trials.
It is not unusual for malpractice carriers to maintain a cap on the hourly fee paid to experts. The attorney for the defendant will certainly inform the potential expert of this policy at the time of the initial contact. If the rate is unacceptably low, the expert is under no obligation to take the case. Conversely, if the expert charges too high a rate, the attorney is under no obligation to retain.
Many experts ask for a retainer at the time of the initial contact. This is especially the case for first-time retention by plaintiff attorneys, where the track record for payment is unknown. Since plaintiffs’ attorneys almost always work on a contingency-fee basis, the funds to pay for the expert usually come from the client, either directly or in the form of an advance by the attorney. As many plaintiffs’ attorneys are often cash-strapped, payment to the expert may come late or not at all, especially if the plaintiff does not recover a judgment. This may require, on occasion, legal action by the expert to recover the fees. Payment of fees from defense attorneys usually is not a problem since they are backed by the assets of a malpractice insurance carrier.
3. Reviewing the Case Itself.
Assuming the above housekeeping matters are resolved satisfactorily, the attorney usually will present a synopsis of the case to the expert. Resist the temptation to provide the attorney with a "snap evaluation." Remember that the attorney represents a plaintiff or defendant and has his or her own spin on the facts of the case. The expert should await the review of the records before giving an opinion. The expert should ask the attorney what records are available and, if there are obvious omissions, a list of necessary records for the review should be given to the attorney.
Once the records arrive, and they have been thoroughly reviewed, the expert will arrange a conference, either in person or by telephone, to go over the findings. The attorney will want to know several key pieces of information:
• Were all the records provided in order for the expert to form an opinion? What additional materials are necessary, if any, to complete the review? Attorneys may not be familiar with the kinds of records kept on emergency department patients. Often overlooked are paramedic reports and tapes of paramedic runs. The records received by the expert are usually copies and might be illegible. The quality of X-rays usually deteriorates with each subsequent copy and might be difficult to interpret. Often, deposition transcripts of the parties or other witnesses are provided for review. The testimony of those individuals might prove useful. The treating physicians might be able to shed some light on interpretation of the medical records and of the thought processes that took place during the patient’s treatment. The deposition testimony of the patient or the patient’s family might provide helpful background as to why the medical encounter led to legal action and another perspective on the care received. The expert should keep in mind, however, that such deposition testimony is almost invariably biased. Each party wishes to place the best spin on the facts as they see them. The expert should not accept facts as gospel unless corroborated.
• Was the standard of care met by the emergency physician and staff in caring for the patient? The expert should keep in mind the definition of standard of care. It is the duty of a physician to have and use the knowledge and skill ordinarily possessed by reputable physicians in the same or similar circumstances.20 It is here that some experts (often hired by plaintiffs) set an impossible standard by demanding perfection. Perfection is not required.21 The expert should try, as much as possible, to put him or herself in the shoes of the treating physician, with the information known at the time the patient was being treated. Knowledge of the patient’s subsequent course should be irrelevant at this point in determining whether the standard of care was met.
The standard of care is not defined necessarily by the authoritative texts in the field or the published literature. Texts often define the ideal, not the actual standard of care. Likewise, texts contain all the knowledge of a particular field, not necessarily the knowledge base of a reasonable physician. Experts, if possible, should rely on their knowledge, training, and experience in evaluating whether the standard of care was met. Relying on texts or literature sets a trap for the unwary. It is rare for there to be only one way to manage a symptom complex or treat a particular disease. Differences of opinion are common, and these differences can often be found in the texts and literature. An expert who relies on a particular text or on certain literature can be certain that the adversary expert will arm the opposing attorney with other published points of view. In most jurisdictions, if an expert has not relied on the literature in forming an opinion, he or she may not be asked questions at deposition or trial based on texts or the like.
A recent change in California law has made the literature minefield more dangerous for experts in that state. Prior to 1997, California courts followed the rule stated above; that an expert could not be questioned about the medical literature if the opinion offered was not based upon that literature. As a result of a change in the evidence code, an expert, on cross examination, may be asked whether a particular text is authoritative in the field, and, if the answer is in the affirmative, may be asked about any opinion expressed within that text, regardless of whether the text was used in forming the expert’s opinions.22 The authority of the text may even be established by the opposing expert. The only defensive maneuvers open to the expert are to deny there is any authoritative text on the point in question or to state that there are a number of texts, each with different but valid points of view.
It might well be that that a complete opinion cannot be given following the initial review. The skeleton of the medical records might not provide the whole story without further explanation by the party who authored them. Likewise, the patient or the patient’s family may have an important perspective that is not initially obvious. As noted above, the rendering of a complete opinion may have to await the deposition testimony of the treating medical personnel and the patient or other witnesses.
Provided an opinion can be given, now is not the time to mince words with the attorney. Plaintiffs’ attorneys want to know if they have a viable case before sinking time and money into the matter. Defense counsel, likewise, want an honest appraisal of the problems they are likely to face in opposing plaintiff’s suit. The defense would much rather make a reasonable early offer to settle a hopeless case than spend tens of thousands of dollars on the defense when a settlement is inevitable. An expert is far more likely to get repeat business if he or she is completely honest, as opposed to providing a "sugarcoated" review that results in the attorney being misled as to the merits of the case.
• Did any breach of the standard of care cause the patient’s injuries? To answer this question, the expert must review the subsequent records to determine what, if any, harm befell the patient, and whether the actions of the emergency physician or staff were the cause of those damages. This job can sometimes be the most difficult one for the expert. It is no longer common for patients who die to undergo autopsy and, therefore, if the cause of death was not determined premortem, it is likely to remain a mystery. Sudden nontrauma related death after release from the emergency department can be from any number of catastrophic causes, including, fatal arrhythmias, ruptured aortic aneurysms, pulmonary emboli, and cerebral hemorrhage. Without knowing the cause of death, it cannot be clearly determined that a patient worked up for syncope and released, for example, died as a result of substandard care. Another less lethal example is reflex sympathetic dystrophy (RSD). Medical science has yet to understand the cause of this disabling, painful condition. All that is known is that trauma, even minor trauma, can lead to its development. Since its cause is unknown, a plaintiff should have a difficult time proving that even sloppy care of an injured extremity led to RSD. (Plaintiffs do win RSD cases with some regularity. This is more a tribute to good lawyering and sympathetic juries than the actual proven merit of the case.)
The law generally requires that the negligent act "more likely than not," (> 51% chance) caused the alleged damages. Again, literature might assist the expert in answering the causation question. The same caveat applies as in using the literature to determine the standard of care. If a variety of opinions exist in the medical literature, the expert should be prepared to know them all and to explain to a jury why his or her opinion is more likely to be the correct one. If an expert cannot be at least 51% certain that a breach in the standard of care caused the harm to the patient, the opinion should be considered speculation and should not be considered by the jury.
• The attorney will want to know, after all is said and done, whether the expert will be able to support the case. It is a rare case that is so black and white that there aren’t nuances and pitfalls for both sides. An honest and straightforward opinion as to what the expert can or cannot support at time of trial is an essential part of the expert’s job. The attorney retaining the expert probably will want to have a conference with the expert to review the findings and to frankly size up the expert’s appearance and demeanor, if they have not worked together previously. Therefore, the expert should be well-prepared and dress neatly for this first meeting.
Reports and Notes
Most experts find it useful to take notes while reviewing records. Be aware, however, that those notes might be discoverable if they still exist. This means the attorney for the other side has the right to see them. There is no attorney-client confidentiality between an attorney and his or her expert. As a result, most experienced experts limit their notes to factual recitations, being careful not to make subjective comments. Most attorneys do not want a written report of the expert’s findings for just such a reason. The report might be discoverable and might be based on incomplete information. Opinions expressed early on in the discovery phase of the case might come back to haunt the expert during deposition or trial. Occasionally, attorneys will want written reports. This occurs most frequently when an expert returns a negative review for a plaintiff’s attorney evaluating a case before actually filing it. The attorney often will want something to show the client to explain why the case is not being accepted. This occasionally occurs for the defense as well, when the attorney wishes to show the expert’s initial opinions to the malpractice insurance carrier. This can usually, however, be expressed in an attorney-client protected communication containing a summary of the expert’s opinions.
After the Initial Review
Provided the attorney has decided to retain the expert, the next step is for the expert to receive additional materials generated in the case. These materials might include prior and subsequent medical records, depositions of the parties, independent medical examinations of the plaintiff, and additional discovery materials such as responses to interrogatories, requests for admissions, and similar materials. After review of such materials, it is customary for the attorney and expert to discuss whether the additional review has changed the expert’s opinion in any way. Attorneys thus engage in an ongoing re-evaluation of their chances for success at trial. At some point, this re-evaluation often encourages settlement negotiations.
The expert is likely to participate in two further legal proceedings prior to trial:
1. The Declaration.
Defense attorneys commonly attempt to obtain a judgment in favor of their client by means of summary judgment. To obtain summary judgment, the attorney brings a motion before the court that essentially states that the plaintiff has no evidence of material fact on which a jury could base a finding for the plaintiff relative to any element or elements of the case. In malpractice actions, this requires a declaration by an expert. This document is usually prepared by the attorney and attached to the motion for summary judgment. In it, the attorney attempts to summarize the facts of the case and the opinions of the expert. The expert should review this document carefully, because it is signed under oath as an authentic representation of the expert’s opinions. Often, several drafts and revisions are required before it accurately represents the expert’s views. This document should be prepared with care since the expert is often questioned at deposition or trial on these previously expressed opinions.
The plaintiff will prepare a declaration of its expert to counter the defense expert’s declaration. If the judge determines that a dispute over a material fact exists, the motion will be denied, and the case will proceed to trial.
From the foregoing, it would appear that motions for summary judgment are difficult to win, and that is true. They are granted most often when the plaintiff produces no expert witness to counter the defense witness’ declaration. They also occur if the counter declaration does not address the material facts of the case.
2. The Deposition.
At a set time (which varies from state to state), before the scheduled date for the trial, the two sides must reveal who their expert witnesses are. This is in conformance with modern legal practice of preventing surprise at the time of trial. (Things were much more fun in the past when "Perry Mason moments" — last-minute confessions at trial — were more common.) Each side is given the opportunity to depose the other side’s expert to determine what opinions will be expressed at trial. Many jurisdictions preclude opinions at trial that were not expressed at deposition.
The deposition is a formal question-and-answer session under oath, in which the expert is asked questions about background, training, experience, and finally opinions on the matter at hand. Experts should expect queries designed to reveal biases and weaknesses to be exploited later at trial. The good expert should have anticipated such questions and discussed them with the attorney with whom he or she is working. Generally, the opinions expressed at deposition will be the same as those later expressed at trial. Any variation later almost surely will be commented upon and used to attack the expert’s credibility. The only legitimate reason to change an opinion between deposition and trial is the uncovering of new evidence that materially changes the facts of the case. It is important to remember that the attorney who hires the expert is not representing the expert at the deposition, but rather the interests of the attorney’s client. Thus, the attorney cannot protect the expert from questions by an instruction not to answer, except in rare circumstances. Generally, all questions have to be answered. Tips and common pitfalls in testifying at deposition and trial are beyond the scope of this article and will be discussed in a subsequent issue of ED Legal Letter.
Often, on the basis of the strengths of the experts’ depositions, the attorneys for both sides have all the information they need to sit down and seriously negotiate a settlement or decide to proceed to trial. Typically, an expert will be called upon to testify at trial in only about 10% of the cases reviewed, since most cases are settled prior to trial.
What Ethics Govern an Expert’s Behavior?
What can an emergency physician do if he or she feels an expert has testified falsely during a legal proceeding? The American College of Emergency Physicians (ACEP) in Irving, TX, has published guidelines for emergency physicians as expert witnesses, first in 1990 and with revisions in 1995 and 2000.23 (See guidelines, p. 127.) Contained within the guidelines are many of the suggestions made in this article. In addition, ACEP recommends that the physician have at least three years’ experience and be board-certified before testifying as an expert. The central point of the guidelines is that expert opinions should be based on a sound medical foundation, with reliance on knowledge of the literature and practice at the time of the incident. The opinions should be fair and impartial and not designed to place either side in a false light.
The only troubling part of the guidelines is, as with most professional society ethical guidelines, there is a lack of effective enforcement. The guidelines include a provision that experts should be willing to submit the transcripts of depositions and testimony to peer review. As of this date, there is no body of "peer reviewers" set up by any organization to provide such a review. What organizations should have jurisdiction? ACEP? The American Board of Emergency Medicine in East Lansing, MI? State medical boards? The state bar? Also, it is unclear as to how any such panel could have enforcement powers against a "rogue" expert without a formal hearing that preserves all parties’ rights. Such a formal procedure would be time-consuming and undoubtedly expensive, because it involves a new set of attorneys. What penalties would be appropriate? Monetary? Board decertification? Censure? None of the answers to these questions or concerns have been addressed.
Conclusion
The expert witness can be friend or foe in the arena of medical malpractice. In a perfect world, all experts would have the same opinion given a particular set of medical facts. But, in the real world, opinions do differ. The attorney’s role, depending on which side he or she represents, is to make the jury understand that the defendant physician’s interpretation of the data and his or her acts based thereon either met or failed to satisfy the relevant standard of care. To do this, the attorneys rely heavily on the testimony of experts. The jury often has a tough enough job without being further confused by false or misleading testimony by any of the experts. Someday, there may be a way to weed out the unscrupulous experts (and attorneys for that matter). When that day comes, physicians will have greater confidence in the judicial system.
Endnotes
1. California Code of Civil Procedure, § 2034.
2. California Code of Evidence, § 730.
3. BAJI, (7th Ed.) BAJI No. 6.30, The Committee on Standard Jury Instructions, Civil, of the Superior Court of Los Angeles County, California. St. Paul, MN: West Publishing Co.; 1986.
4. Danielson v. Roche, 109 Cal. App. 2d 832, 835 (1952).
5. Kennedy v. Holder, 1 S.W. 3d 670 (Tenn. Ct. App. 1999).
6. Agnew v. Los Angeles, 82 Cal. App. 2d 616, 619 (1947).
7. Barham v. Widing, 210 Cal. 206, 216 (1930).
8. Schwartz v. Abay, 26 Kan. App. 2d 707, 995 P2d. 878 (Kans. Ct. App. 1999).
9. Dean v. Dyer, 64 Cal. App. 2d 646, 655 (1944).
10. Dallas ex rel. Davis v. Russell, 727 So. 2d 110 (Ala. Civ. App. 1998).
11. Daubert v. Merrill Dow Pharamceuticals Inc., 951 F.2d 1128, 1131 (9th Cir. 1992).
12. Id.
13. Dolen v. St. Mary’s Hospital of Huntington Inc., 203 W.Va. 181, 506 S.E.2d 624 (1998).
14. Marshall v. Medical Assocs. of R.I. Inc, 677 A.2d 425 (R.I. 1996).
15. Weinberg v. Geary, 686 N.E.2d 1298 (Ind. Ct. App. 1997).
16. Heise v. Presbyterian Hosp. of Dallas, 888 S.W. 2d 264 (Tex Ct. App. 1994).
17. California Health and Safety Code, § 1799.110.
18. Florida Statues Annotated § 766.102(6)(a), amended 1988.
19. BAJI, supra, BAJI No. 6.37.1.
20. BAJI, supra, BAJI No. 6.37.1.
21. BAJI, supra, BAJI No. 6.37.2.
22. California Code of Evidence, § 721(b).
23. American College of Emergency Physicians: Expert Witness Guidelines for the Specialty of Emergency Medicine; August 2000.
American College of Physicians (ACEP) Policy Statement
Expert Witness Guidelines for the Specialty of Emergency Medicine
Approved by the ACEP Board of Directors August 2000
Expert witnesses are called on to assess the standard of care for emergency physicians in matters of alleged medical malpractice and peer review. Because medical expert witness testimony has demonstrated the potential to set standards of medical care, such testimony will be considered by the American College of Emergency Physicians (ACEP) to fall within the realm of the practice of emergency medicine. This testimony would therefore be subject to accountability by appropriate licensing authorities.
Expert witnesses in the specialty of emergency medicine should meet the following criteria:
- be certified by a recognized certifying body in emergency medicine;1
- be in the active clinical practice of emergency medicine for three years immediately before the date of the incident;2
- be currently licensed in a state, territory, or area constituting legal jurisdiction of the United States as a doctor of medicine or osteopathic medicine;
- abide by the following guidelines for an expert witness:
• The expert witness should possess current experience and ongoing knowledge in the area in which he or she is asked to testify.
• The expert witness should be willing to submit the transcripts of depositions and testimony to peer review.
• It is unethical for an expert witness to accept compensation that is contingent on the outcome of litigation.
• The expert witness should not provide expert medical testimony that is false, misleading, or without medical foundation.2 The key to this process is a thorough review of available and appropriate medical records and contemporaneous literature concerning the case being examined.
• After this process is completed, the expert’s opinion should reflect the state of medical knowledge at the time of the incident.
• The expert witness should review the medical facts in a thorough, fair, and objective manner and should not exclude any relevant information to create a view favoring the plaintiff or the defendant.
• Expert witnesses should be chosen on the basis of their experience in the area in which they are providing testimony and not solely on the basis of offices or positions held in medical specialty societies, unless such positions are material to the witness’ expertise.
• An emergency physician should not engage in advertising or solicit employment as an expert witness where such advertising or solicitation contains representations about the physician’s qualifications, experience, or background that are false or deceptive.
• Misconduct as an expert, including the provision of false, fraudulent, or misleading testimony, may expose the physician to disciplinary action.2,3
References
1. American College of Emergency Physicians. ACEP-recognized certifying bodies in emergency medicine [policy statement; approved March 1998]. Ann Emerg Med 1998; 32:529.
2. American College of Emergency Physicians. Code of ethics for emergency physicians [policy statement; approved June 1997]. Ann Emerg Med 1997; 30:365-366.
3. American College of Emergency Physicians. College Manual. American College of Emergency Physicians Web site. Available at: http://www.acep.org/library/index.cfm/id/ 1181. Accessed June 28, 2000.
CE/CME Objectives
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