Don’t Risk Defamation Suit From Lying "Expert": AHC Media
Don’t Risk Defamation Suit From Lying “Expert”: AHC Media
Consult attorney and professional organizations
An expert witness for the plaintiff takes the stand and proceeds to tell the jury patently false statements regarding the standard of care. While this problem is certainly not unique to emergency medicine, it is “exacerbated by the number of ‘experts’ allowed by judges to testify based on limited exposure to emergency medicine, who are not themselves emergency physicians,” says Hugh F. Hill III, MD, JD, FACEP, an assistant professor in the School of Medicine at Johns Hopkins University in Baltimore, MD.
In some cases, witnesses have no experience in the emergency department, except for a rotation while in training, adds Hill. “We have been a specialty for a generation, but have not yet completely shaken the perception that any physician can practice emergency medicine,” he says.
Misleading testimony may also come from specialists in a particular disease or injury, such as a cardiologist testifying in a lawsuit involving the emergency care of a heart attack. “The cardiologist might be qualified to address the causation element of the plaintiff’s case, but may also be used to comment on the standard of care, if the court permits, which it clearly should not,” says Hill.
In one case, an emergency physician attempted to prevent a hyperbaric/critical care specialist from testifying against him in a carbon monoxide poisoning case.1 Despite a state tort reform law from 2004 requiring standard of care experts be from the same specialty, the court allowed the expert, saying the specialty issue might affect credibility, but not competence to testify, says Hill.
Countersuit Inadvisable
In cases where the factual basis of the opinion or other factual assertions are either in error or outright misstatements, “such information in deposition can be researched before trial and challenged there,” Hill says. “In trial itself, the defense has to know the statement to be false and be able to counter it.”
Either way, the time for naming witnesses may have passed and, thus, the best — or perhaps the only — means of showing the falseness of the expert’s assertions is blocked, says Hill.
“In one of my cases, the witness’ claim that a procedure was ‘always’ done a certain way in his hospital was easily refuted by a call to nursing in that facility,” says Hill. “But it was too late to even obtain an affidavit, much less a counter-witness.”
Hill says that while looking up publications by the expert and finding statements helpful to the defense is part of the physician defendant’s job, the defendant should not risk communicating with the expert directly, or with those who might influence the expert, such as his colleagues.
Investigation of the witness and the accuracy of his or her testimony has to be handled by the legal team, he stresses.
“For a physician to be on the receiving end of a lawsuit is a life-changing experience. They take this very personally, and often ask, ‘Can I countersue?’” says Rade Vukmir, MD, JD, FACEP, FACHE, chairman of education and risk management at Traverse City, MI-based ECI Healthcare Partners and clinical professor of emergency medicine at Temple University in Philadelphia. “The answer is, ‘Yes, you can. But it is often costly, and you would seldom prevail.’”
Tread Carefully
Physician defendants may be tempted to publish the testimony they believe deviates from evidence-based standards themselves in an attempt to discredit the expert. “Some people will post it on a blog, and they stand a risk of a defamation suit,” says Vukmir.
Vukmir says that instead, the physician defendant should consult with an emergency medicine professional organization, such as the American College of Emergency Physicians (ACEP), to determine if the testimony truly deviates from established, evidence-based standards.
“You get the benefit of another group of knowledgeable people acting as a second unbiased filter before you do anything in the public realm,” he says. “If that group looks at the testimony and thinks that it could go either way, that’s typically where things need to stop. But if they think you have a point, then you can decide with them if any additional actions would make sense.”
In some cases, both professional and commercial organizations have posted an expert’s deposition and made it publicly searchable to their members, Vukmir says. What physician defendants should not do, he warns, is “to have a public discussion about the event. You should not reach out and contact people, write a letter to anyone involved, or start an electronic discussion about the case.”
Even though it may appear to the physician defendant that the expert testified falsely, and he or she may have testified hundreds of times before, “they’ve done it within the broadly designed legal standards that have been created,” says Vukmir.
“Discussion of protected medical-legal matters in the public forum will clearly not serve the physician’s interests,” he underscores. “The majority of physicians do the best that they can to take great care of patients with the resources that they have available. If they stick by that principle, that resonates with fact-finders far more than threats of an expert witness countersuit.” (See related story, p. 87, on the possibility of a sanctioned expert countersuing an organization.)
Reference
1. Nicholas v. Mynster September Term 2011, 068439, Supreme Court of New Jersey, 208 N.J. 333; 27 A.3d 947.
Sources
For more information, contact:
- Hugh F. Hill III, MD, JD, FACEP, Assistant Professor, School of Medicine, Johns Hopkins University, Baltimore, MD. Phone: (410) 550-7852. Email: [email protected].
- Rade Vukmir, MD, JD, FACEP, Chief Clinical Officer, National Guardian Risk Retention Group, ECI Health Partners, Traverse City, MI. Phone: (800) 253-1795. Email: [email protected].
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