The Expert Witness in Emergency Medicine
The Expert Witness in Emergency Medicine
Many emergency physicians are asked at some point in their careers to review medical malpractice cases by an attorney. These reviews may be requested on behalf of a plaintiff bringing a malpractice claim against a physician or for the defendant in such a claim. The nature of the legal system in the United States is such that it usually requires experts, generally medical, on both the plaintiff and defense sides in medical tort (injury) cases. In other cases involving injury without medical malpractice, there are also experts who explain the type of injuries of the plaintiff, perhaps in the field of aviation design, building construction, product liability or traffic patterns, depending on the nature of the legal action. All these types of issues fall under the civil aspect of the legal system. By contrast, criminal litigation generally does not involve physicians, except as forensic experts, generally in psychiatry or pathology, where the experts are not directly involved in a person’s care, except peripherally as an examiner of an individual or evidence such as tissue samples. Occasionally, emergency physicians are called upon to provide expert testimony if a crime such as rape, assault and battery or other types of injuries are involved.
Under the Federal Rules of Evidence, an expert is defined as an individual qualified by knowledge, skill, experience, training or education to provide scientific, technical or other specialized opinions about evidential or factual issues. An expert witness should be impartial and disinterested; this does not mean uninterested, but rather, that one should have no financial interest in the outcome of a legal action, such as a contingent fee arrangement. The expert is paid for time, not testimony. The expert should be honest, presenting opinions without prevarication or distortion, and should be objective. False testimony is perjury. In the case of medical malpractice, the expert should have training, experience and practice comparable to that of the physician being sued or the other expert who will testify in the case. The expert should limit testimony to his or her area of expertise. For example, an emergency physician may comment about the management of a patient in hypovolemic shock, whether managed by a trauma surgeon, intensivist or other specialist. It would be inappropriate, however, to comment on a particular surgical procedure without the requisite background to do so. Additionally, an expert is far more credible if he or she actively practices medicine, rather than being employed full-time providing testimony.
When preparing testimony, the physician should review all available records. The situation has risen where an attorney does not provide everything available, causing the physician to be blind-sided when additional material is provided for last-minute analysis or used for impeachment (discrediting of testimony) during a cross-examination or trial.
The emergency department is a high-risk environment. Though most non-emergency physicians have spent some time in the ED as part of their training, the high density of cognitive demands for very sick individuals, with the multiple distractions of noise, interruptions, time pressures, and need for timely and progressive decision-making are best understood by physicians working in the ED regularly.
Courts use different standards in their acceptance of medical testimony. The original standard of what testimony would be allowed arose in Frye v. United States in 1923. In this case, the Court determined that testimony must reflect what is generally accepted in the particular field in which it belongs. As with much of the law, it has a conservative approach to change. Judges had the authority to exclude testimony that was either not relevant or inappropriate and allowed the jury to determine which evidence they considered credible.
In 1993, however, the rules of evidence, a game plan for how expert testimony can be provided, changed dramatically with Daubert v. Merrell Dow Pharmaceuticals, a landmark case ultimately decided by the U.S. Supreme Court. This case involved a medication used for nausea and vomiting in pregnancy, Bendectin, which was alleged to have caused birth defects. The Court held that the Frye test was superseded by the Federal Rules of Evidence and originally stated, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.”
There are five elements to the Daubert analysis: (1) has the theory put forth been tested (Testability), (2) has it been published (and peer reviewed), (3) is there “general acceptance” of the theory or method discussed in the medical community (Scientific Knowledge), (4) does the expert’s testimony fit the facts of the case at hand (Relevance and Reliability), and (5) is there a known “Rate of Error” of the particular theory or method discussed. Under Frye, the element of “general acceptance” was the only relevant criterion. A subsequent case, Kumho Tire Co. vs. Carmichael, determined that the judge’s gate-keeping function, as defined in Daubert, would apply to all expert testimony, including non-scientific testimony.
There have been enhancements to the Daubert standard by the Courts and by legislation. In 2000, Rule 702 of the Federal Rules of Evidence was amended to codify and add additional provisions – expert testimony must be based upon sufficient facts or data, the testimony must be the product of reliable principles and methods, and the witness must apply these principles and methods reliably to the facts of the case.
Once testimony has been excluded as inadmissible under a Daubert ruling, it would apply to other courts within that jurisdiction, though not necessarily to courts outside that jurisdiction. The importance of Daubert is twofold. First, by excluding some expert testimony, the plaintiff may fail to meet the burden of proof, and the complaint might be dismissed through a process known as summary judgment (though the exclusion of testimony could happen for defense witnesses as well). As the plaintiff would not have met the burden of proof, the case may be dismissed at this point, subject to appeal, as it is the plaintiff who must prove the case. Second, it holds out a higher standard of testimony for expert witnesses who must be (more) honest and must comply with the standard of care (in medical malpractice) or other current standards, depending on the context of the legal action.
A physician’s testimony may be novel, under Daubert, but must “make sense” to the judge who is making the determination. Physicians whose testimony has been determined to be “exceptional” -- that is, sufficiently outside the normative experience of what is commonly practiced by others in that specialty -- have been sanctioned by their specialty society and, at times, lost membership. Several years ago, a neurosurgeon lost licensure for such testimony. These instances have involved witnesses for the plaintiffs.
Some examples of how not to be an expert witness:
Lie about your credentials. If you are not board certified, say you are. If you didn’t pass your boards the first time around, say you did. If you are not familiar with a particular branch of medicine or surgery, say you are. Once your credibility is subject to question, everything you say will be viewed through the same tainted glass. Don’t read all of the material involved in the case. Don’t read pertinent medical literature on both sides of the question. Base your opinions on what the attorney hiring you wants to hear, rather than the facts in the case. Make outrageous statements. For example, say that the decision to use tPA is as easy as cooking a pork loin. Say that the emergency physician should have made the diagnosis of acute appendicitis (when she made the diagnosis of acute abdomen and contacted a surgeon for further care). Say that an ECG showed an obvious MI when it didn’t. Make contingency arrangements, where you will be paid more if the case has a favorable result. Forget that you are to be paid for your time, not your opinion.
In summary, being an expert witness requires one to review the material at hand, honestly report on conclusions drawn, and avoid any financial impropriety.
Many emergency physicians are asked at some point in their careers to review medical malpractice cases by an attorney. These reviews may be requested on behalf of a plaintiff bringing a malpractice claim against a physician or for the defendant in such a claim. The nature of the legal system in the United States is such that it usually requires experts, generally medical, on both the plaintiff and defense sides in medical tort (injury) cases. In other cases involving injury without medical malpractice, there are also experts who explain the type of injuries of the plaintiff, perhaps in the field of aviation design, building construction, product liability or traffic patterns, depending on the nature of the legal action. All these types of issues fall under the civil aspect of the legal system. By contrast, criminal litigation generally does not involve physicians, except as forensic experts, generally in psychiatry or pathology, where the experts are not directly involved in a person’s care, except peripherally as an examiner of an individual or evidence such as tissue samples. Occasionally, emergency physicians are called upon to provide expert testimony if a crime such as rape, assault and battery or other types of injuries are involved.
Under the Federal Rules of Evidence, an expert is defined as an individual qualified by knowledge, skill, experience, training or education to provide scientific, technical or other specialized opinions about evidential or factual issues. An expert witness should be impartial and disinterested; this does not mean uninterested, but rather, that one should have no financial interest in the outcome of a legal action, such as a contingent fee arrangement. The expert is paid for time, not testimony. The expert should be honest, presenting opinions without prevarication or distortion, and should be objective. False testimony is perjury. In the case of medical malpractice, the expert should have training, experience and practice comparable to that of the physician being sued or the other expert who will testify in the case. The expert should limit testimony to his or her area of expertise. For example, an emergency physician may comment about the management of a patient in hypovolemic shock, whether managed by a trauma surgeon, intensivist or other specialist. It would be inappropriate, however, to comment on a particular surgical procedure without the requisite background to do so. Additionally, an expert is far more credible if he or she actively practices medicine, rather than being employed full-time providing testimony.
When preparing testimony, the physician should review all available records. The situation has risen where an attorney does not provide everything available, causing the physician to be blind-sided when additional material is provided for last-minute analysis or used for impeachment (discrediting of testimony) during a cross-examination or trial.
The emergency department is a high-risk environment. Though most non-emergency physicians have spent some time in the ED as part of their training, the high density of cognitive demands for very sick individuals, with the multiple distractions of noise, interruptions, time pressures, and need for timely and progressive decision-making are best understood by physicians working in the ED regularly.
Courts use different standards in their acceptance of medical testimony. The original standard of what testimony would be allowed arose in Frye v. United States in 1923. In this case, the Court determined that testimony must reflect what is generally accepted in the particular field in which it belongs. As with much of the law, it has a conservative approach to change. Judges had the authority to exclude testimony that was either not relevant or inappropriate and allowed the jury to determine which evidence they considered credible.
In 1993, however, the rules of evidence, a game plan for how expert testimony can be provided, changed dramatically with Daubert v. Merrell Dow Pharmaceuticals, a landmark case ultimately decided by the U.S. Supreme Court. This case involved a medication used for nausea and vomiting in pregnancy, Bendectin, which was alleged to have caused birth defects. The Court held that the Frye test was superseded by the Federal Rules of Evidence and originally stated, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.”
There are five elements to the Daubert analysis: (1) has the theory put forth been tested (Testability), (2) has it been published (and peer reviewed), (3) is there “general acceptance” of the theory or method discussed in the medical community (Scientific Knowledge), (4) does the expert’s testimony fit the facts of the case at hand (Relevance and Reliability), and (5) is there a known “Rate of Error” of the particular theory or method discussed. Under Frye, the element of “general acceptance” was the only relevant criterion. A subsequent case, Kumho Tire Co. vs. Carmichael, determined that the judge’s gate-keeping function, as defined in Daubert, would apply to all expert testimony, including non-scientific testimony.
There have been enhancements to the Daubert standard by the Courts and by legislation. In 2000, Rule 702 of the Federal Rules of Evidence was amended to codify and add additional provisions – expert testimony must be based upon sufficient facts or data, the testimony must be the product of reliable principles and methods, and the witness must apply these principles and methods reliably to the facts of the case.
Once testimony has been excluded as inadmissible under a Daubert ruling, it would apply to other courts within that jurisdiction, though not necessarily to courts outside that jurisdiction. The importance of Daubert is twofold. First, by excluding some expert testimony, the plaintiff may fail to meet the burden of proof, and the complaint might be dismissed through a process known as summary judgment (though the exclusion of testimony could happen for defense witnesses as well). As the plaintiff would not have met the burden of proof, the case may be dismissed at this point, subject to appeal, as it is the plaintiff who must prove the case. Second, it holds out a higher standard of testimony for expert witnesses who must be (more) honest and must comply with the standard of care (in medical malpractice) or other current standards, depending on the context of the legal action.
A physician’s testimony may be novel, under Daubert, but must “make sense” to the judge who is making the determination. Physicians whose testimony has been determined to be “exceptional” -- that is, sufficiently outside the normative experience of what is commonly practiced by others in that specialty -- have been sanctioned by their specialty society and, at times, lost membership. Several years ago, a neurosurgeon lost licensure for such testimony. These instances have involved witnesses for the plaintiffs.
Some examples of how not to be an expert witness:
Lie about your credentials. If you are not board certified, say you are. If you didn’t pass your boards the first time around, say you did. If you are not familiar with a particular branch of medicine or surgery, say you are. Once your credibility is subject to question, everything you say will be viewed through the same tainted glass. Don’t read all of the material involved in the case. Don’t read pertinent medical literature on both sides of the question. Base your opinions on what the attorney hiring you wants to hear, rather than the facts in the case. Make outrageous statements. For example, say that the decision to use tPA is as easy as cooking a pork loin. Say that the emergency physician should have made the diagnosis of acute appendicitis (when she made the diagnosis of acute abdomen and contacted a surgeon for further care). Say that an ECG showed an obvious MI when it didn’t. Make contingency arrangements, where you will be paid more if the case has a favorable result. Forget that you are to be paid for your time, not your opinion.
In summary, being an expert witness requires one to review the material at hand, honestly report on conclusions drawn, and avoid any financial impropriety.
Source...