Why ACEP Needs to Censure Unethical Testimony from Other Specialties

2 Comments

Part of a series: Click here to read ‘We Hereby Resolve: Dispatches from the 2015 ACEP Council Floor’

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.


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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.”


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REFERENCE

  1. http://www.acep.org/clinical—practice-management/procedures-for-addressing-charges-of-ethical-violations-and-other-misconduct/


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ABOUT THE AUTHOR

SENIOR EDITOR
Dr. Sullivan, an emergency physician and clinical assistant professor at two residency programs in Illinois, is EPM's resident legal expert. As an attorney specializing in healthcare issues, Dr. Sullivan represents physicians and has published many articles on legal aspects of medicine. He is a past president of the Illinois College of Emergency Physicians and a past chair and current member of the American College of Emergency Physicians' Medical Legal Committee.

2 Comments

  1. Jonathan Laine on

    Some years ago I filed a complaint against an ACEP member who testified in a manner I thought unethical against my group. This was a well connected, respected member of ACEP. The review by the ACEP ethics committee dismissed my groups complaint. I found that the way ACEP handled it to be cursory. (Of course, the committee did not agree with my claim, and had they, perhaps the physician accused of the unethical behavior would have had the same view.) I would not waste my time with another complaint should I encounter this type of testimony again.

  2. Although Dr. Laine’s experience is disappointing, more members should utilize the existing services to bring unethical experts to task, or at least to let them know that their testimony is not occurring behind closed courtroom doors never to see the light of day, giving them the ability to lie with impunity. More members should familiarize themselves with these procedures and at least use them. Unfortunately they have not been widely publicized, and the renewal documents no longer make the fact that compliance with ethics policies including expert witness policies clear, as a condition of membership.

    Although I am hopeful that this Council resolution will result in some meaningful changes to allow more broad use of the ethics policies, it remains to be seen whether or not the policy will be broadened to encompass non members. Sadly, the trend in recent years has unfortunately been for ACEP to protect ITSELF from liability rather than to protect members from either liability or its psychological effects. The key opposition to Dr. Sullivan’s Council Resolution was the new General Counsel of ACEP, who wrote a grossly slanted background piece without conferring with the author of the resolution, which was a mandatory policy I started when I was Speaker SPECIFICALLY in order that association staff could not slant the opinions of Councillors who relied upon the background for reliable and balanced information relating to any unfamiliar issue. Sadly, that policy seems to have been dropped.

    In a prior example of this association trend, a 2011 Council resolution requiring more publicity and support for a longstanding program of Litigation Stress support for physicians was overturned in less than 2 years by the Executive Committee without even an opportunity for comment by the chair of the committee that had originally established, and was in charge of the program (who was yours truly). The reason: totally unsubstantiated (and grossly exaggerated) claims of POTENTIAL liability that might accrue to the College if members received peer support from other members.

    I have always thought that we must stand up and collegially support each other in all respects relating to medical liability, whether it be policing unethical experts or promoting mental health of EPs undergoing litigation.

    To me, it is terribly disheartening that we sometimes have to do this independently of, and in some cases, in direct opposition to, self serving and self preservation policies of our incredibly well endowed principal professional association. Although this is the way of most institutions, I had thought we were somehow better.

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