ACEP announced a year or two ago that they would, as a professional society, review expert witness testimony to determine if it met the Societies’ standards for accuracy. Now their first review is out, and it’s interesting to read.
The medical case looks like one of those ?what? cases we’re all familiar with, when a patient presents with one thing and has a bad outcome of something unrelated.
I’m going to
abstract those things I found pertinent(I wound up putting the whole thing here), and make a couple of comments:
A postmenopausal African-American female patient presented to the
emergency department with a chief complaint of fairly persistent pain
"inside her back" for two days prior to her evaluation. While the
patient did not verbally describe the location of her pain, nurses
noted that the patient pointed to her low back as she described the
pain. The patient attributed her pain to "overexerting" herself doing
yard work two days prior to evaluation. She also reported a history of
nausea of unknown duration.
Upon her presentation, the patient’s pulse was 104 and her blood
pressure was 157/110. Her height was 5′ 0" and her weight was 270
pounds. She had no SOB or diaphoresis.
Okay, big, round, back pain. Very common ED complaint.
The patient’s medical history included hypertension and obesity. She
had a positive family history for atherosclerotic heart disease.
The physician’s examination of the back showed no abnormalities. The
pain was unable to be reproduced with bedside maneuvers. The remainder
of the physical examination was not discussed in the depositions. A
urinalysis showed 1+ bacteria.
Okay, so we’re not really second-guessing the medical care here, we’re looking at whether the expert witness testimony meets ACEP standards.
The patient’s pain resolved without intervention. She was apparently discharged home with Lortab and Motrin.
On discharge, the patient’s BP was 140/90 and her pulse was 80.
That’s not bad, at all.
The following day, the patient’s husband found her poorly
responsive. She was brought back to ER and later died from unknown
An autopsy was performed and showed that the patient’s heart was
hypertrophied and there was narrowing of coronary vessels. There was no
evidence of clot or plaque ruptures found in any of the coronary
This is a terrible, and from the presented information so far, completely unforeseeable event. Now, bring on the plaintiff’s experts:
Expert Number One
The first plaintiff’s expert
believed that the patient’s symptoms were manifestation of undiagnosed
heart disease. It was this expert’s opinion that the patient’s sore
back, elevated blood pressure, elevated heart rate, and nausea signaled
that the patient was having unstable angina. The expert stated that
isolated nausea, cough, and other GI symptoms can all be manifestations
of unstable angina.
back pain isn’t a recognized symptom of myocardial ischemia. This
seems to be an attempt to twist the case to fit the outcome.
This expert stated that in this case, the standard of care required
that the patient be given aspirin and put on a heart monitor. It also
required that the physician obtain cardiac enzymes and a chest x-ray.
Finally, the standard of care required that this patient be given
heparin, beta blockers, and morphine.
is one of those paragraphs that makes practicing EM docs say ?WHAT? If
your patient is having myocardial ischemia, yes; if your patient has
low back pain, that’s an utterly ridiculous thing to say.
In explaining why the emergency physician fell below the standard of
care in this case, the expert stated that "there were risks that . . .
were not explored," including the patient’s history of hypertension,
African American race, and abnormal vital signs. The expert stated that
if the risks had been explored, the physicians "could have intervened"
and presumably could have prevented the patient’s death.
guesswork here. I would hazard to say that there are unexplored risks
in every single patient’s ED visit, and that’s the norm. This doesn’t
mean we’re sloppy or careless, it means Emergency Medicine is brief,
intense and focused.
It was this expert’s opinion that the patient died from an acute
coronary event. The defense attorney noted that the patient’s autopsy
showed no clot or plaque ruptures in any of the coronary arteries. The
expert believed that "severe spasm" of a coronary artery could also
cause an acute coronary event that would also have resulted in the
More guesswork. Hey, let’s make up a cause of death, and then say "prove it didn’t happen".
The defense attorney demonstrated the expert’s retrospective
approach at reviewing this case when he saw a note the expert had
apparently written to himself that stated "Did [physician] have any
reason to suspect [heart disease]?"
Dang smoking guns.
Expert Number Two
The second expert did not
believe that the patient was actually having low back pain. While the
nurse’s notes show that the patient pointed to her low back, due to the
patient’s body habitus, this expert questioned whether the patient
could have been pointing to the upper back.
had height-challenged, weighty patients tell me their backs hurt, and
when they can’t point to the right spot, they tell me ("no, higher than
that"). This is more guesswork.
This expert believed that back pain was the patient’s anginal
equivalent. Given the patient’s history of hypertension, her race, her
family history of cardiac disease, and her symptoms at presentation,
this expert stated that a reasonable doctor should have evaluated the
patient for heart disease.
See similar, above.
This expert faulted the physician for failing to ask historical
questions such as, "What does your blood pressure normally run?" and,
"Does your blood pressure normally elevate when you have pain?" The
expert also stated that there was a reasonable degree of medical
certainty that patient was having ischemia at the time she presented to
the emergency department and that to a reasonable degree of medical
certainty, the EKG may have shown ischemic changes had it been
this is an interesting question. Ask yourself: "Does my BP elevate
when I have pain?" This is a question designed to elicit a look of
bewilderment from patients, and to plant a general sense of unease in
them (why would I know that)?
The expert stated low back pain that lasted for 2 days, brought the
patient to the ED in the middle of night, caused abnormal vital signs,
and went away without treatment is not consistent with musculoskeletal
I see more back pain during night shifts, my patients in pain often
have abnormal vital signs, and occasionally one gets better before
discharge. It’s a little odd, but not inconsistent.
"The physician deviated from standard of care because the physician
failed "[to do what the expert] would do and [what the expert] would
expect to be done for that presentation," the expert stated.
And now, for the exciting conclusion:
When evaluating patients for acute
low back pain, medical literature focuses upon determining the presence
of "red flags." These red flags include major trauma, age>50,
persistent fever, history of cancer, metabolic disorders, major muscle
weakness, bowel or bladder dysfunction, saddle anesthesia, decreased
sphincter tone, and unrelenting night pain. Presence of these red flags
is used to suggest the possibility of malignancy, fractures,
infections, abdominal aneurysms, disk herniations, and epidural
Pretty standard stuff, that.
Although "back pain" can be one of the symptoms
of an acute coronary syndrome, neither the Standard of Care Committee
nor the experts in this case were able to find any references
describing "low back pain" as a presenting complaint of patients with
any form of myocardial ischemia.
Again, pretty standard.
It was the opinion of the Standard of Care Committee that the
experts in this case presented opinions that did not represent the
standard of care for several reasons:
1. The experts assumed facts that were not in evidence. For example, when
the patient complained of pain inside her back while pointing to her
lumbar region, the experts, knowing the outcome of the case, stated
that they believed the patient was instead referring to pain in her
upper back as a manifestation of cardiac disease. The only basis for
these opinions was speculation that the patient may not have been able
to point to her low back due to her body habitus. In addition, contrary
to one expert’s assertions, there was no evidence that the patient
experienced "spasm" of the coronary arteries, or that she died from an
acute coronary event.
entire ‘acute coronary event’ as cause of death is a way to try to pin
the death of this patient on the EM doctor. No evidence was presented
to show the patient died of such, and in fact the autopsy refuted this
as a cause of death.
2. One expert stated that the standard of care required physicians to
perform in-depth history and physical examinations. Instead, it was the
consensus of the Standard of Care Committee that focused physical
examinations are the standard of care in emergency medicine and that
in-depth and detailed history and physical examinations are more
appropriately left to the primary care physicians. The expert’s
statements that physicians who encounter patients with high blood
pressure should be required to ask patients questions such as "how high
their blood pressure usually runs" and "whether their blood pressure
elevates with pain" are unrealistic and do not represent the standard
of care in emergency medicine.
More good news, I’m still practicing within the standard of care.
3. Both experts placed an inordinate amount of weight on the patient’s
risk factors for cardiac disease, even when the patient presented with
complaints that did not suggest a cardiac etiology. The Standard of
Care Committee believed that while risk factors may contribute to a
patient’s overall history, patient management cannot be based solely on
risk factors unrelated to a patient’s complaints.
4. The Standard of Care Committee believed that the expert opinions in
this case were influenced by retrospective analysis. The plaintiff’s
attorney discussed the case and outcome with both experts prior to
their review. This appears to have biased the experts as demonstrated
by the notations one expert made to himself about whether the physician
had "any reason to suspect [heart disease]." While low back pain has
not been described in medical literature as a manifestation of heart
disease, at least one of the experts apparently began with the
diagnosis of heart disease and worked backwards to determine whether
the patient exhibited any symptoms that could have remotely suggested
heart disease. It was the opinion of The Standard of Care Committee
that prospective analysis is of utmost importance when determining the
standard of care in a given situation.
think the committee is being too kind here. This was, to my reading a
‘find a way to pin this death on the ED doc’. Since the facts of the
case don’t get near a cause of death, just make up a theory and let fly!
5. Finally, at least one of the experts stated that the standard of care
was represented by what the expert would have done or would have
expected to be done in a similar situation. The standard of care in
medical practice is what a prudent and reasonably well trained
physician would do in the same or similar circumstances. Using oneself
as a yardstick for determining the standard of care may not be
appropriate since some experts may practice above the standard of care
and others may utilize only one of several acceptable medical practices
in given circumstances.
There’s a phrase that need to be burned into experts and peer-review committees everywhere: The standard of care in
medical practice is what a prudent and reasonably well trained
physician would do in the same or similar circumstances.
So, you say, why are you so worked up over this? Because expert
witnesses gave utterly unsupportable testimony in an effort to show a
doctor had been so negligent as to cause the death of a patient. I
expect this behavior from the plaintiff’s bar (they want to make
money), and regrettably our ‘jackpot justice’ society is more than
willing to let slip the dogs of deceit.
The real culprits in medical malpractice cases are expert witnesses
who will say anything that fits the plaintiffs’ contention, and as in this case inventing theories out of whole cloth. If we’re
going to affect malpractice reform we need to start by policing ourselves.
There’s no mention of what ACEP intends to do with these Case Review Reports, other than
publish them for the edification of future experts (and defendants). I
sincerely hope ACEP uses these reviews to censure physicians who give
bad expert testimony. Good riddance.