Friday, December 30, 2005

The American Academy of Emergency Medicine goes after dubious "expert" witnesses

From Dr. Tony's blog I found this.

It seems that the American Academy of Emergency Medicine (AAEM) has created a new section in their website called Remarkable Testimony.

There is no question that there are those among us who choose to supplement their incomes by serving as "hired guns" for plaintiff attorneys advancing highly questionable legal actions. The purpose of this website is to shame these "experts" in emergency medicine who offer testimony in court trials or preliminary legal proceedings that is best described as "dubious". Hopefully by publicly documenting their mercenary actions, such behavior may be curbed to some extent.

This is an idea that I applaud and I only hope that further efforts in this area are directed by other professional medical societies. I emailed the AAEM with some further suggestions that some readers may find useful:

To whom it may concern,

This website is an outstanding though perhaps controversial idea. May I make some additional suggestions?

If the proof of these outrageous assertions comes from a public record such as a court transcript, then I'd recommend that ANY identifying information regarding the offending physician also be posted as well. Such information, particularly if gleaned from public documents could in no way be considered confidential. It is often available in court transcripts at the beginning of testimony when these witnesses are being introduced.

In addition, any other PUBLICALLY available information that specifically identifies the doctor that the AAEM can get should likewise be published. Examples might be years of membership in AAEM and other medical societies or perhaps actions against such doctors available by searching public records of licensing information, etc. Again, such information should be publically available to prevent charges of invasion of privacy.

Lastly, as you accrue cases, I'd recommend establishing a freely searchable database on your website that would allow users to search for, identify and characterize these people (again with information freely available from public documents). Fields in such a database may include "name", "business address", "medical license numbers" and of course the multifunctional "comments" field.

The genius of your website is that it shames these doctors who engage in such unscrupulous behaviors. The more information about these people that's out there and the more readily available it is, the more these people will be exposed for the damage they do to the provision of good health to our communities.

Sincerely,

John S. Ford, M.D., M.P.H.
Assistant Professor of Medicine
David Geffen School of Medicine at UCLA


Shunning people for bad acts serves a justifiable and certainly useful purpose in society. Such bad acts need to be brought to light. The efforts of the AAEM seem like a good approach to that end.

8 Comments:

Anonymous hgstern said...

Bravo, Doc!

BTW, we've missed you...

Happy New Year!

December 30, 2005 10:50 PM  
Blogger Fred said...

Here, here!!!

December 31, 2005 6:43 AM  
Anonymous mchebert said...

I have a neurologist friend who thinks all doctors who testify in trials against other doctors should be banned from the profession. I think that is ridiculous, but I also think it is equally ridiculous that courts accept a physician's opinion as "expert" just because of the M.D. I have an M.D. and there are many branches of medicine I don't know the first thing about.

Courts should not accept individual expert opinion. Doctor's opinions in malpractice cases should be submitted as consenus opinion by several reviewing doctors. A consensus is always more likely to be true than a single opinion.

January 11, 2006 1:38 PM  
Anonymous Anonymous said...

Most courts don't accept an expert's opinion just because they have an MD. In fact, plaintiffs and defendants counsel rarely go into court without someone who is not an expert in that particular field of medicine, because they will be torn up on cross examination if they do.

"There is no question that there are those among us who choose to supplement their incomes by serving as "hired guns" for plaintiff attorneys advancing highly questionable legal actions."

Is there any question that there are those among you who choose to supplement your incomes by serving as "hired guns" for your colleagues? Or do you only care about those who help plaintiffs?

Is there any question that even when malpractice is evident, many of you won't testify on behalf of the plaintiff regardless? That there is an unwritten code of silence against testifying against your colleagues (particularly if they have the same insurer) no matter how egregious the act?

Where's your outrage over that?

January 13, 2006 7:36 AM  
Blogger The Medicine Man said...

Anonymous,

I have no objections to publicizing the bad acts of physicians who provide unscientific and medically unsupportable testimony on behalf of their colleagues.

That would only make sense. However, such situations rarely come up and for the following very understandable reason.

Most medical malpractice defenses are mounted by malpractice insurers with fairly substantial resources. They are therefore able to hire nationally respected experts. Such experts possess exceedingly valuable reputations which it is surely in their interest to protect. They are generally unwilling to provide unscientific, demonstrably erroneous testimony in a forum as public as a courtroom.

Any case of malpractice so egregious that it could only be defended by hiring a charlatan of the caliber discussed in my post would never be permitted to progress as far as a jury trial. There would be an overwhelming economic imperative to settle such a case.

Unfortunately, such economic imperatives do not necessarily operate on the plaintiff's side. It is fairly easy to locate an "expert" willing to testify to almost anything for a fee though rarely an established opinion leader in his or her field.

But again, to answer your question, I would certainly be outraged by such behavior on either side of a malpractice dispute and would be delighted to see such immoral behavior vigorously publicized.

Does that assuage your indignation?

January 13, 2006 11:06 PM  
Anonymous Anonymous said...

Not really, and this quote illustrates why.

"It is fairly easy to locate an "expert" willing to testify to almost anything for a fee though rarely an established opinion leader in his or her field."

It is that easy? Really? Have you done it? Have you watched a cross examination of such a person? Charlatan's don't survive under the cross of a good lawyer, and most malpractice defense lawyers are VERY good.

You illustrate one of my points with your statement, though. There are numerous physicians who will testify for their brethren, very respected experts. But again, no matter how clear the malpractice, most of those same physicians won't testify AGAINST another physician. Would you?

So, in an effort to make it even harder for a plaintiff, your lobbying arms have now decided to attack those few experts who will. (Don't kid yourself, no defense testimony is going to be reviewed.)

I appreciate you illustrating the hurdles any malpractice plaintiff, no matter how legitimate the claim, has to face. And of course, they almost never have the "substantial resources" of the defendant's insurer.

January 14, 2006 6:29 AM  
Blogger The Medicine Man said...

Anonymous,

"It is fairly easy to locate an "expert" willing to testify to almost anything for a fee though rarely an established opinion leader in his or her field."

This is a statement I'll surely stand behind because I've seen numerous instances of this occuring. I myself was named in a malpractice case where the plaintiff's only expert witness was a cardiologist. The case involved my management of an orthopedic problem.

Interestingly enough, this particular witness turned out to be the plaintiff attorney's husband, a fact that was conveniently not disclosed to the judge.

Needless to say, this case went nowhere especially considering that it had no merit. The bottom line is that yes, it is very easy to find a "charlatan" to testify to almost anything. The legal journals are filled with advertisements for companies maintaining registries of such individuals.

As for your suggestion that opinion leaders are unwilling to testify against other physicians, this statement has little validity as well. As I indicated, this is rarely necessary because egregious cases of malpractice rarely go to trial and are settled. The mere threat that an opinion leader is willing to testify is generally enough to convince the defense to settle.

Believe me, when a patient has truly been harmed due to the incompetence of a physician, nationally recognized experts can get just as upset with poor quality care as anyone else. they will often agree to be listed as expert witnesses if asked.

Those cases just rarely get further than the deposition stage before getting settled so their testimony is unnecessary. And yes, I've seen this happen and in fact would be willing to testify myself for a plaintiff in an egregious case (and have even told a patient this in at least one instance).

January 14, 2006 3:22 PM  
Anonymous Anonymous said...

Then you're a braver man than most, and I applaud you for volunteering. But we both know you're the exception to the rule. Those services that put attorneys in touch with experts exist because attorneys can't get local doctors to testify against each other. Do you think that they wouldn't rather have an expert from the same locale? That they really want to fly in Physician X from halfway across the country? Of course not.

And you don't negate the original point that the "charlatan" rarely survives on cross examination.

What's more, there is a lot more to the question of whether a case settles than just who is the expert. Many cases are tried simply because the insurer has decided that the case is a policy limits case anyway and they have nothing to lose.

January 15, 2006 7:54 AM  

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