AAEM Reviews Cases, and Names Names

I’ve written before that one of the things we, as a Profession need to do to decrease meritless malpractice cases is to put our own house in order as regards expert witness testimony. I do not advocate a wall of silence or a parroting of the ‘party-line’, but I’m all for exposing our erstwhile ‘colleagues’ who will give expert testimony that’s at odds with provable standards and actual practices.

AAEM has decided to join the party, explaining it thusly:

In order to file a malpractice claim, many states require plaintiffs to have an opinion from an expert that malpractice has occurred. A number of these so-called experts are physicians who seem willing to make any statement, no matter how outrageous, in support of a malpractice claim. These physicians can profit handsomely from their willingness give such testimony.

Alarmingly, a number of leaders in our specialty have chosen to supplement their income by giving “expert” testimony that is unfounded in current medical standards and practice.

AAEM has responded to suggestions by several members by creating this web site. It is designed to bring to light testimony by expert witnesses that is remarkable either because of its spurious nature or because it is particularly helpful to the emergency physician defendant. It is hoped that by publicizing such testimony, and the individuals who offer it, emergency physicians may find some measure of relief from the ongoing crisis.

Unlike the ACEP review, AAEM is naming names. AAEM has helpfully included the name of the plaintiff’s expert witness (which I’m going to leave out of this post, for now).

A look at the testimony in the case does make me, as a practicing EM physician, say “huh?” Here’s some of it:

Page 33 – line 11:

Question: “And have you treated patients like Mrs. Walker who have come here with these kind of symptoms with tPA?”
Answer: “All the time. I mean, unfortunately, it’s all the time. Not daily, but probably three or four times a week.”
Comment: The reviewers were surprised that a physician would claim to give tPA so frequently. Giving it at such a rate would probably exceed the usage at the busiest centers in the world. This seems like a wild exaggeration.

My ED sees about 75,000 a year and we don’t give tPA for stroke 4 times a month, let alone any one physician giving tPA for stroke 4 times a week.

Want to keep the roaches down? Turn on the lights. They don’t like the exposure, and for that reason ACEP and AAEM are to be commended for their efforts.


Comments

  1. Curious JD says:

    Would you testify for a plaintiff? If not, why not? If so, how many times have you done it? Even if the defendant and you shared the same insurer? Even if he/she worked in the same city?

    You don’t have to advocate a wall of silence because it already exists. The goal of these guys is to add a few more bricks to it. After all, they aren’t reviewing those experts who testify for the physician.

  2. I see CJD found a new site to troll. Have fun.

  3. I think it would be very difficult to find a case in which I would testify for a plainfiff, but not because I want to “keep a wall of silence”. The reason is because the insurer and physician will usually try to reach a settlement when there is clear physician liability. Those that are fought all the way through the court generally have no merit. That is why a judgement is usually rendered for the defense. Therefore I will probably never be presented with such a case. Instead the plaintiff lawyer will have to troll and pay for some unscrupulous “expert witness”

    The “expert witness” in this post should be sued and should be stripped of his board certification (if he has one)

  4. I have never testified as an expert witness either way. I don’t know why I wouldn’t testify against an EM doc who clearly violated the standard of care. Policing our profession needs to be done, and if an EM doc screws up that needs to be acknowledged. That having been said, I think those cases would be very, very rare.

    Unfortunately, our current system is All About The Money, how to sway a jury to write a big check, and not necessarily about actual cause – effect in medmal.

    I don’t see this as adding bricks to a wall, by the way. I see this as reining in people who will give testimony as an expert in my field who hold opinions that is at odds with provable standards and actual practices. (I keep cutting and pasting that definition. I don’t know if I wrote it or I read it somewhere, but it fits).

    Oh, and they are reviewing experts on both sides, please read the linked article.

  5. CuriousJD, I’m surprised at you.

    I thought you’d be in favor of something like this; don’t you PI attorneys want physicians policing their own ranks? It’s a constant refrain from the trial attorneys that marginal physicians are allowed to continue practicing by their own colleagues… shouldn’t that also extend to physicians who give expert witness testimony for a living? Medical literature is considered more reliable when it’s peer-reviewed… what’s wrong with extending the same standard to expert witnesses?

    Don’t you PI guys want the prostitute/weak “experts” weeded out? Who better to tell you if a physician is spinning a bought-and-paid-for web of bullshit (for the prosecution OR defense) than their fellow docs? Don’t you guys want expert witness physicians testifying in your cases that have been peer-reviewed by their colleagues, and found to testify within the standard of care?

    I swear, it’s almost as if you guys want docs out there that will say anything for money.

  6. I think AAEM is to be commended for taking this bold step – and kudos for committing to publish questionable testimony from both the plaintiffs and the defense.

    This makes me wonder though why a jury of lay people is struggling through medical evidence in the first place. The defendant is supposed to receive a jury by his peers, so wouldn’t it seem most appropriate for AAEM to form a non-biased panel that could submit neutral reports to the courts on the medical merits of individual cases? Just a thought.

  7. Curious JD says:

    First, Jerry, a troll is someone who makes inflammatory statements that have no basis in fact and aren’t relevant to the discussion. I think you’ll find I do that rarely. But in answer to everyone’s good questions, let me address them from the bottom up:

    1. Expert panels. Why not? Because expert panels would be chosen by people like those who read this blog who believe nearly every claim lacks merit. That being said, I’m not entirely opposed to, as some states have, a panel appointed by reps from doctor’s groups and plaintiff’s lawyer’s groups. If they say the case has merit, it may proceed to trial and if it doesn’t settle defense pays costs. If they say it doesn’t, they can proceed but if plaintiff loses he/she pays costs. If they can’t decide, then it goes as normal.

    I don’t think a lot of med mal lawyers would oppose this, because it would give them a chance to assess the case without too much money in it.

    2. Weeding out physicians. This isn’t physicians weeding out their own. It’s physicians protecting themselves. They’re not preventing poor physicians from seeing patients, they just don’t want to testify for them. That’s not really the public interest you’re protecting, that’s their own.

    3. All about the money. Yeah, it is. Because if you’re the victim of mad mal resulting in a significant injury, you probably will need money to pay your past and future medical bills because you’re uninsurable. If you can’t work, you’ll need money to pay your bills. And yes, you deserve something for the quality of life that another person took away from you through their negligence. Money isn’t perfect, but it’s all we’ve got. Don’t act like victims are greedy simply because they sue. You get a serious injury and then try to purchase insurance without a job and see if you don’t need a little as well.

    To say it’s not about cause and effect is simply foolish.

    4. Why cases try. That’s one reason cases try. Another reason is because it’s a high value case and the parties simply can’t agree on a value.

    If you guys care so much about scrupulous testimony, why don’t you form an association to make yourselves available to plaintiff’s attorneys? After all, you always claim you think patients deserve compensation – why not help them?

  8. Curious JD says:

    Forgive me, I meant patients who have actually been injured by medical malpractice deserve compensation. I type slower than I think sometimes.

  9. The problem is, as you well know, that Bad Outcome doe not equal negligence/malpractice, but it is likely to result in a medmal payout, and the worse the outcome the higher the payout, regardless of actual negligence. So, yes, it’s about the money.

    Policing the ranks of physicians who give bad (and by that I mean testimony that doesn’t stand up to outside scrutiny) isn’t injurious to anyone except the attorney who bought and paid for the testimony.

  10. ” that Bad Outcome doe not equal negligence/malpractice, but it is likely to result in a medmal payout, and the worse the outcome the higher the payout, regardless of actual negligence.”

    These statements have no basis in fact. Plain and simple. I understand that physicians believe that if you repeat this often enough it becomes true, but that’s not the case.

    You do realize that the physicians have attorneys don’t you? And experts?

    Do you even think about the actual victims of malpractice? Or do you just believe it doesn’t exist?

  11. You arrogant jerk. I WAS the case. I KNOW these things because I’ve been through the system. I have actual facts, and actual personal experience.

    You need to find somewhere else to peddle you crap, nobody’s buying it here.

  12. Way to police your site GruntDoc!

  13. Curious JD says:

    So your one case proves this statement:

    “” that Bad Outcome doe not equal negligence/malpractice, but it is likely to result in a medmal payout, and the worse the outcome the higher the payout, regardless of actual negligence.”

    I think the arrogance is yours, my friend. This stuff may sell at insurance company meetings and AMA conventions, but the facts don’t bear it out. Why? Because you don’t have any statistical basis for your claims. For you to take your one case and extrapolate it across the board is the height of arrogance.

    I know who does have all the statistics – the insurers. Their information gathering is amazing. But they don’t give you all that info, do they? Wonder why?

    Don’t kid yourself – this whole thing is about saving insurers’ money. Physicians are just pawns. Why do you think this is the third “crisis” in 30 years?

  14. Because my experience is real (I notice you’re off the “no basis in fact” crap you like to spew.

    And, I’m done with you. I’ve asked you nicely, then not so nicely to leave, and you’re the guest who doesn’t know when to go home. So, I’ll help you.

  15. You illustrate exactly what’s wrong with many physicians today. You are completely unwilling to consider anyone else’s opinions. An study was done by a physician in the late 90s analyzing why some physicians get sued more than others even though they commit the same amount of mistakes. The conclusion: arrogance.

  16. Oh, I have seen both side of the argument, I just think you’re all wet.

    Oh, and it’s still time for you to go.

  17. Curious JD says:

    Don’t shoot the messenger because the facts don’t lead to your conclusions.

  18. CJD,

    Take a hint. You don’t have any message

  19. derrick lowery says:

    I am not an attorney, but what I don’t understand – why did the defense attorney just call the pharmacist that works at this physicians hospital to the stand to refute his testimony? TPA is expensive, and rare, so the documentation of EXACTLY how much the hospital uses would be easy to find, and easily demonstrate that this “expert witness” was a sham.

Trackbacks

  1. GruntDoc says:

    Take The Pledge

    Emergency Physicians Monthly Online has a good idea to cut down on frivolous medmal cases, and I think it’s a good one. Their drive is called “Take the Pledge”, and here it is: “I will not offer as an expert…