During a recent medical malpractice case, a pulmonary expert testified against an emergency physician stating that 8 mg of morphine given to a patient with one lung “should be expected to cause respiratory arrest.” In another case, an intensivist testified against an emergency physician, stating that it is the “standard of care” to be able to obtain IV access on any patient within five minutes. While both of these statements are materially untrue, until recently ACEP members have had little recourse against experts from other specialties who make such outlandish testimony.
ACEP currently has a procedure in place by which ACEP members may initiate an investigation against other ACEP members for allegations of ethical violation or other misconduct (see “Procedures for Addressing Charges of Ethical Violations and Other Misconduct.”) To summarize the current policy, if an ACEP member believes that another ACEP member has engaged in unethical conduct, a written complaint may be submitted to the ACEP Executive Director providing documentation of the alleged violation. The Executive Director and the Ethics Committee then review the facts to determine whether or not the complaint has merit. If the complaint is deemed to have merit, then it is sent to the respondent, providing notice of the opportunity for a hearing and requesting a written response. Once a written response is received, all documentation is reviewed by the Ethics Committee. If the Ethics Committee recommends that adverse action be taken, the matter and the Ethics Committee recommendations are forwarded to the ACEP Board. Prior to any disciplinary action, the respondent is entitled to a hearing on the matter. A decision to impose disciplinary action then requires a two thirds vote of the Board of Directors. Disciplinary actions may include public or private censure, suspension from ACEP, or expulsion from ACEP. Many of these disciplinary actions must be reported to the National Practitioner Databank.
The problem with ACEP’s current policy is that it only applies to unethical actions taken by ACEP members. This issue was raised at ACEP’s Council meeting at the Scientific Assembly in Boston this year. One person providing testimony during the meeting equated the current policy to a home security system that only protects you from people in your own family, but not from outside intruders. This year, however, a resolution was passed that expands ACEP’s procedures for addressing ethical violations so that they also apply to non-ACEP members whose actions affect an ACEP member. Most notably, ACEP members will now be able to initiate an ethics complaint against expert witnesses who provide inappropriate testimony against ACEP members in medical malpractice cases. If disciplinary action is taken after ACEP’s due process procedures, ACEP may report such disciplinary action to the non-ACEP member’s own specialty society and state medical licensing board. In addition, ACEP will now create a summary to be distributed to expert witnesses in malpractice cases involving ACEP members which puts those experts on notice that their testimony is subject to review by ACEP and ACEP’s Ethics Committee and is subject to admonishment and reporting to their specialty society and state medical licensing board.
(Procedures for Addressing) While there were some arguments during the Council meeting that ACEP has no standing to sanction experts in other specialties, when those experts testify about the standard of care in emergency medicine, ACEP not only has the standing to review that testimony, but the responsibility to protect its members from unethical testimony – regardless of the expert’s specialty or society membership.
Adoption of this resolution is a huge step forward in protecting ACEP members against false, malicious, and inappropriate expert testimony. Kudos to ACEP, ACEP’s Board, and ACEP’s Council members for passing this important measure and upgrading our “home security system.”