American Academy of Emergency Medicine


I am writing in response to Dr. Andy Walker’s excellent piece titled “Malpractice” in the March/April issue of Common Sense. Although I never was a fan of Shakespeare, the quote from Julius Caesar at the start of his editorial is right on the money (pun intended — see below). Dr. Phil has always been more on my level than Shakespeare. Dr. Phil frequently deals with two people in terrible conflict with each other. One of his common tactics is to challenge each of them to stop pointing the finger at the other one and to stop spending all of their energy taking the other person’s inventory. He then challenges each of them to examine what part of the conflict they themselves own and what they can each do from their own side to help the situation. If we look for things that we can do in a positive or constructive way to help the lawsuit problem that we have, this Dr. Phil strategy relates to one of the important points in Dr. Walker’s editorial: the only thing you can control is your own behavior.

Along those lines, I wanted to share with your readers and my fellow AAEM members something that we did a few years ago in our Rhode Island ACEP Chapter. (I have been a proud AAEM member for many years, but there is no Rhode Island AAEM chapter). We adopted a non-binding and voluntary resolution in our chapter that tried to take a positive step against the problem of the big-money, hired-gun expert witnesses that so willingly slurp from the trough of the malpractice litigation system. As everyone knows, expert witnesses on both sides in malpractice actions frequently demand an hourly rate of compensation significantly higher than the hourly rate that they receive for practicing medicine (assuming that they do actually practice medicine). The Rhode Island ACEP Resolution is as follows:

"The Rhode Island Chapter of the American College of Emergency Physicians recommends that its members consider accepting compensation for medical expert legal work equal to the approximate hourly compensation rate that they earn working as practicing emergency medicine physicians. Medical expert legal work includes all medical expert case review and testimony."

We felt that, as emergency physicians, our greatest value to society comes from the expert care that we give our patients and from our research, teaching, and administrative activities that advance the specialty (and thereby advance patient care). We recognized that one thing that physicians have direct control over is their own medical expert compensation rate. First, we hoped that if physicians voluntarily limited medical expert fees, it might contribute positively, even if only in a small way, to controlling our rising malpractice insurance rates. Second, and more importantly, we hoped that a move from within the medical community to control costs to the system by reducing medical expert fees would demonstrate to the public and to the legislature that we were willing to take the first step toward reform ourselves. Rhode Island ACEP recommended that its members should take the lead in this area to do the right thing from an ethical, an economic, and a political perspective.

Our resolution could certainly be criticized because it is a voluntary resolution and has no actual teeth for enforcement. The lawyers told us that it had to be that way and that we could not make specific recommendations about compensation rates. Although it is mostly a symbolic move, if the practice of accepting a compensation rate for medical expert work similar to what you receive for actually being a practicing physician caught on across the country and in other specialties, we might actually see some positive change, even if it is in just a small way.

— Glenn Hebel, MD FAAEM FACEP

Thank you for writing. Your feedback makes Common Sense a better newsletter. Your expert witness reform proposal is interesting, and if it could be enforced would certainly get rid of those unethical experts who are in it purely for profit and will say anything for money. From what I have seen, that would mean a lot fewer plaintiff's experts. Unfortunately it would take the passage of new laws to institute your idea, and since your reform idea would hurt plaintiffs far more than defendants, that ain't gonna happen.

There is another way to accomplish your goal of taking most of money out of being an expert witness, however. Although this too would require new laws, tort lawyers might be more likely to go along with it because it involves equal risk for both the plaintiff and defendant.

Instead of each side retaining its own experts — and paying them — the court would appoint a panel of three board-certified physicians in the same specialty as the defendant to agree on one expert opinion. They would be drawn from a pool of volunteers in each state and either serve for free or be paid by the court rather than one side or the other. Imagine the impact on the jury when the judge informs them that a panel of experts who aren't being paid by either side has determined that there was or was not malpractice. Of course far fewer cases would go to trial under this system, because a defendant would be much more likely to negotiate a settlement once he heard the court-appointed expert panel had decided against him. And a plaintiff would be more likely to give up and drop the suit once he learned that the only expert opinion the jury would hear was going to favor the defendant. In fact, either side that chooses to proceed to trial despite an adverse opinion from the expert panel and then loses should be forced to pay all expenses for the winner.

This knife cuts both ways — with equal risk for both the plaintiff and defendant — and would reduce the cost of the whole malpractice litigation system, with lower expert witness costs and fewer trials. It is fairer to plaintiffs because the legal system would consume less of the damage award, and it is fairer to emergency physicians because only board-certified specialists in emergency medicine (ABEM or AOBEM) could serve as experts. Currently I see far too many cases in which physicians from other specialties testify against emergency physicians, because they are too ignorant of our specialty to realize how ignorant they are.

Thanks again for writing — now go start a state chapter of AAEM in Rhode Island!

— The Editor


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