‘Superstar’ Expert Witness Strategy Backfired in These Malpractice Cases
December 1, 2016 6 minutes read
No EP defendant wants to see the editor of a textbook on emergency medicine on the plaintiff’s witness list, and no expert witness looks forward to facing a “big name” in emergency medicine on the opposing side. However, bringing on “superstar” expert witnesses can backfire.
“The jury doesn’t know that the big name is a big name,” explains Ken Zafren, MD, FAAEM, FACEP, EMS medical director for the state of Alaska and clinical professor of emergency medicine at Stanford University Medical Center.
Jurors will learn that the witness is the editor of a textbook or past president of a society, “but that won’t make a difference one way or the other, if the witness is not convincing in person,” Zafren warns.
Zafren once testified as an expert witness on behalf of the plaintiff in a malpractice case in which the defendant’s primary emergency medicine expert was a noted textbook editor.
“I doubt the jury had any awareness of how prominent the expert was,” Zafren says. “Unfortunately, this expert chose to testify in a way I strongly believe was less than truthful.”
The case involved a missed septic prosthetic hip that had been in place 20 years. The expert claimed he had never seen a case of delayed infection of a prosthetic hip in decades of practice, and that this was very rare and therefore out of the scope of required knowledge for an EP. Zafren testified he had seen several cases in his career, and the plaintiff’s orthopedic expert, who specialized in infected prostheses, testified that he saw similar cases several times a month by referral.
“Since the patient had a fever and complained of hip pain, it should have been an easy diagnosis,” Zafren explains, noting the EP defendant diagnosed the patient with pyelonephritis based on the presence of bacteriuria.
“In spite of state rules against cumulative experts, the defendants presented three emergency medicine experts, including the famous one,” Zafren says, adding that one of the experts testified as an infectious disease expert, although she only practiced emergency medicine. “After all this, there was a hung jury.” Jurors said they were confused by the differing testimony among three plaintiff’s experts and the defense expert.
“I don’t believe that the prominence of the plaintiff’s expert was a factor,” Zafren adds.
Practicing EP Most Effective
“Big names” are likely to be trumped by a likeable, down-to-earth, practicing EP.
“Some of the big names don’t practice as much. Who you really want is the physician that is active and practices regularly,” says Robert B. Takla, MD, MBA, FACEP, medical director and chief of the emergency center at Ascension St. John Hospital in Detroit.
Many states passed laws that forbid someone from being an expert unless they are clinically active to a large extent.
“In Michigan, for example, you need to be at least 50% clinical and teaching,” Takla says, adding that an expert who comes across as honest and sincere makes the best impression. “What we do in reality is not always the same as what is in print. And different situations call for different solutions.”
As an expert witness for the defense, Takla recently faced a prominent chief of emergency medicine at a major academic medical center, who was testifying on behalf of the plaintiff.
“The well-known ER doc came across as very pompous. The jury actually disliked him a lot as he was disrespectful toward me,” Takla recalls.
The plaintiff’s expert stated that he did not know Takla, while Takla recounted to the jury that the two had met very recently at a meeting with a small group of physicians. Takla spoke in a conversational tone directly to jurors, in contrast with the plaintiff’s expert, who addressed attorneys in a businesslike fashion.
The case involved a patient who had suffered a fractured wrist. The plaintiff’s expert said that the standard of care was unequivocally to get an orthopedist to come down to reduce the fractured wrist in the ED. However, the patient had been seen at a community ED, not an academic medical center.
The plaintiff’s attorney asked Takla if he would agree with the expert’s assertion that an orthopedics consult should be obtained in the ED. Takla acknowledged that while this might be routine in the practice setting in which the expert works, it’s certainly not standard care in most EDs. He stated, “I work in multiple ED settings, including an academic center. However, when I work in a smaller community hospital, where there is no residency orthopedics program, that’s not the standard of care. We might just splint the patient and have them follow up with an orthopedist the next day for a delayed reduction. There is absolutely nothing wrong with that, medically.” The jurors understood that while assigning an orthopedist to reduce the fracture in the ED was an ideal option, it wasn’t the standard of care.
Takla went on to explain that another reason orthopedist residents are called to see patients in a tertiary care center is for their own education and to get real-life experience with ED patients, not because it’s medically necessary for the patient.
“The jury seemed to identify more with me. They thought I was more believable,” Takla says. “I think they saw the other expert as more of an ivory tower guy.”
Unimpressed with CV
When Corey M. Slovis, MD, is on the opposing side of an emergency medicine “superstar,” he openly acknowledges that the individual is well-known and well-published.
“But then I am very specific in what I disagree with him or her on,” says Slovis, a professor and chairman of the Department of Emergency Medicine at Vanderbilt. Sometimes, the expert is testifying on an area that’s actually outside the expert’s realm of expertise.
“If they are in fact discussing a case in their area of expertise, it makes me go back and look carefully at what they are testifying about,” Slovis says, adding that in some cases, he still views the case as defensible. “The expert is either overstating the ‘facts,’ or has gone out on a limb and left some room for argument.”
Alfred Sacchetti, MD, FACEP, chief of emergency services at Our Lady of Lourdes Medical Center in Camden, NJ, and assistant clinical professor of emergency medicine at Thomas Jefferson University in Philadelphia, agrees that a “superstar” is only of value to an audience that recognizes him or her as such.
“Every expert is going to have some degree of an accomplished CV; otherwise, they would not be an expert,” Sacchetti says. “The superstar just has a [longer] CV.”
However, to a jury, it’s not likely to make much of a difference.
“Because they don’t know the field, they can’t appreciate the difference between someone with a large number of articles in ‘throwaway’ journals or someone with publications in specialty-specific, peer-reviewed journals,” Sacchetti explains. For example, a short column in a drug company-sponsored brochure is likely to be just as impressive to a jury as an article in Annals of Emergency Medicine. “Incidentally, the circular is likely to be much more flashy and distinguished looking,” Sacchetti adds. “Docs and attorneys may be impressed with the 100-page CV, but not the average juror.”
Sacchetti recalls a time when his wife accompanied him to a conference and encountered an emergency medicine “star.”
“She certainly enjoyed speaking with the individual, but was totally unaffected by their ‘superstar’ status. She really could not appreciate the significance of their accomplishments,” Sacchetti says. The same is true of jurors, who believe every expert is a “star” in the field. “The pompous ‘superstar’ is likely to be much less effective than the reasonable, down-to-earth, well-credentialed, practice-based expert.”
SOURCES
- Alfred Sacchetti, MD, FACEP, Chief, Emergency Services, Our Lady of Lourdes Medical Center, Camden, NJ. Phone: (856) 757-3803. Fax: (856) 365-7773. Email: [email protected].
- Corey M. Slovis, MD, Professor and Chairman, Department of Emergency Medicine, Vanderbilt University Medical Center, Nashville, TN. Phone: (615) 936-1315. Email: [email protected].
- Robert B. Takla, MD, MDA, FACEP, Medical Director/Chief, Emergency Center, Ascension St. John Hospital, Detroit. Phone: (313) 343-7398. Email: [email protected].
- Ken Zafren, MD, FAAEM, FACEP, Alaska Native Medical Center; Clinical Professor, Stanford University Medical Center. Phone: (907) 346-2333. Email: [email protected].
Believable, likeable EP is better bet with jurors.
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