False "Expert" Statements Shouldn't Go Unchallenged
"Everyone knows that a patient with a heart rate higher than 90 should be admitted to the hospital."
"The patient had S. aureus in her bloodstream for at least three months. The emergency physicians (EPs) should have noticed."
"The doctor should have been able to stitch the wound so that there was no scar."
"It is the standard to get a CT of the head within 30 minutes in any patient with trauma to the head."
All of these are examples of inaccurate statements made by expert witnesses in malpractice lawsuits involving EPs and these are often wrongly viewed as facts by the jury, says Peter Viccellio, MD, FACEP, vice chairman of the Department of Emergency Medicine at State University of New York, Stony Brook.
"A fundamental problem in the courtroom is that fact-finding in malpractice cases is largely in the hands of experts, biased either for or against the issue at hand," says Viccellio. "Absurd statements by experts can only be challenged by other experts, not by empiric facts."
If an expert witness testifies that performing a head CT within 30 minutes of arrival is standard of care in the ED, one approach would be to pull the expert's personal cases to see if each one met this standard. "However, nothing like this is ever done in court," says Viccellio. "Sure, you could ask the question, but the experts can say whatever they want to. The rules in court are quite different than the rules at the bedside."
Viccellio says that in his own discussions with the New York State Department of Health Office of Professional Medical Conduct, the staff welcomed the referral of cases involving egregious testimony by a physician, and stated that they would consider inappropriate testimony a breach of professional conduct.
"There have been scattered cases of this through the country, sometimes with grave consequences to the 'expert,'" Viccellio says. "Perhaps this venue should be considered more frequently. It might reduce the amount of inappropriate testimony."
Here are some factors that can result in misleading or false testimony by experts in ED malpractice litigation:
The expert may wrongly claim that something is standard of care in the ED.
A plaintiff's expert may insist that the EP should have done a specific intervention, for example, when the intervention is typically done only on inpatient units. "The attorney can ask me as an expert witness to comment on practicing in the ED not just what we wouldn't do, but why not doing something is acceptable contemporary practice," says Jonnathan Busko, MD, an EP at Eastern Maine Medical Center in Bangor and medical director of Maine EMS Region IV.
An expert's statements about clinical practice may be outdated.
If the plaintiff's expert hasn't worked in an ED for many years, his or her responses may not reflect current practice.
Busko suggests this response for the defense expert: "Historically, this approach was used. However, new research has come out that has demonstrated that to not be the optimal approach. Here are my references for that."
"Opinions need to be grounded in something," says Busko. "Oftentimes, I can look at an opinion and, based on references that identify current practice, I can say, 'There is no basis for this. This is not how we do things now.'"
Part of the expert's job is to identify errors in the positions of opposing witnesses, says Busko, so the defense attorney can pose specific questions that need to be answered. "This gives the attorney the ability to intelligently question that opinion and make the other expert defend their position," he says. "It doesn't happen frequently, but there are times when someone may change their opinion based on that."
The expert's opinion may be outside the mainstream.
It's possible that experts on both sides have reasonable medical opinions and simply disagree because they are looking at things differently, says Michael M. Wilson, MD, JD, a health care attorney with Michael M. Wilson & Associates in Washington, DC, but in some situations, an expert's opinion may be unreasonable.
"In some ways, that can be helpful, because you can martial medical literature to show it's not valid," Wilson says. "If the jury thinks that the expert is giving an opinion that is way outside the mainstream, they will probably penalize that side severely at trial."
Expert opinions need to be based on best practices, according to national standards. "Just as medicine has become evidence-based, so has expert witnessing," says Busko. "An opinion can't be based on 'This is the way I've always done it.' That is a change over the last decade or so. The opinion has to have a solid basis. If it doesn't, then it's very vulnerable."
The expert may have failed to review all the relevant information.
To avoid this scenario, Wilson says that he typically gives experts "everything all the depositions, all the medical records." If the expert is given only a subset of materials to review, he or she might be challenged with additional facts in front of a jury.
"The expert can be attacked on the grounds that he isn't familiar with something that goes against the facts that he is setting forth," says Wilson. "You want him to be fully familiar with the facts of the case."
Sources
For more information, contact:
Jonnathan Busko, MD, MPH, FACEP, Eastern Maine Medical Center, Bangor. E-mail: [email protected].
Peter Viccellio, MD, FACEP, Vice Chairman, Department of Emergency Medicine, State University of New York, Stony Brook. Phone: (631) 444-2928. Fax: (631) 444-3919. E-mail: [email protected].
Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. Fax: (202) 280-1414. E-mail: [email protected].
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