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Goon Squads Atttempt To Chill Expert Testimony In Malpractice Cases


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1/18/2012
Alvin Wolff Jr.
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Goon Squads in emergency medicine now mirror other specialites putting a chill on expert testimony in malpractice cases.

Procedure for Review of Testimony Regarding Standard of Care in Emergency Medicine
The American College of Emergency Physicians (ACEP) believes that a physician providing testimony as an expert witness clearly has an ethical responsibility to be objective, truthful, and impartial when evaluating a case on the basis of generally accepted standards of practice. It is unethical to overstate one’s opinions or credentials, to misrepresent maloccurence as malpractice, to bear false testimony, or to use the name of the College as prima facie evidence of expertise.1
ACEP established this procedure to identify and publicize expert witness testimony and or reports that is "false, misleading, or without medical foundation,"2 and thus unacceptable according to ACEP's policy statement, "Code of Ethics for Emergency Physicians."
This procedure will be used only to publicize examples of expert witness testimony or reports as to the standard of care that does not meet the ACEP criteria for accuracy. Such testimony or reports, once identified, will be publicized in ACEP communication vehicles without mention of any identifying information. The procedure described herein will not be used as a punitive measure against any individual. There is no prohibition against the affected member filing a subsequent or contemporaneous ethics charge related to the pending matter.
  1. Request for Review
    1. This procedure will only address expert witness testimony and or expert witness reports regarding the standard of care in emergency medicine that members believe to include egregious statements and conclusions.
    2. A request for review may only be initiated by an ACEP member. No others have standing to present a request.
    3. Request must be in writing, specifying the exact testimony that is to be subject to this review, and signed by the requesting ACEP member.
    4. Requesting member must include copies of transcripts of sworn testimony to be reviewed including the pleadings by all parties in the case, depositions or court transcript, the medical record from the emergency department encounter and or written reports submitted in medical liability cases.
    5. Requesting member must include a brief summary of the case.
    6. Material must be delivered to:


      American College of Emergency Physicians
      Associate Executive Director, Policy
      1125 Executive Circle
      Irving, TX 75038-2522

    7. Receipt of the request will be confirmed in writing within ten (10) business days of the receipt by ACEP staff.
    8. The requesting member must sign and submit a statementprovided by ACEP that he/she understands:
      1. The purpose of this review is educational.
      2. The identity of the expert witness coupled with the findings of the review panel cannot be disclosed to any person or in any proceeding or forum that could result in a punitive outcome for that expert witness.
      3. Submitting testimony or reports for review pursuant to this procedure does not preclude the requesting member from filing a complaint pursuant to ACEP’s Procedures for Addressing Charges of Ethical Violations and Other Misconduct.

  2. Medical Expert Standard of Care Review Panel
    1. Composed of 12 members appointed by the ACEP President.
    2. Requirements for membership:
      1. Individuals must have considerable clinical experience.
      2. Individuals must be in the active practice of emergency medicine defined as a minimum of 500 clinical hours per year for the three years preceding appointment. Some members of the committee should have experience with evidence-based literature review.
    3. Term of Service
      1. Three (3) years.
      2. Terms to be staggered - the terms of four (4) panel members will terminate each year.
      3. Members may be reappointed for a maximum of three (3) complete terms.
      4. ACEP President will appoint a current panel member as the panel chair for a two (2) year term.

  3. Processing of Request
    1. ACEP staff confirms that the requirements detailed in Section A above are satisfied.
    2. Within fourteen (14) business days, ACEP staff notifies the requesting member of any additional information that is needed.
    3. Staff notifies chair of the Standard of Care Review Panel that a request has been received.
    4. The chair then assigns two panel members to serve as case liaisons for that case. One of the liaisons will be designated by the chair as the lead liaison and will be responsible for writing a summary of the case. These assignments shall be made on a rotating basis.
    5. ACEP staff member removes all identifiers from the documents submitted by requesting member and forwards the blinded documents to the case liaisons within forty-five (45) business days of the assignment of the liaisons.
    6. The case liaisons review the documents to ensure that all identifiers have been excised from the documents.
    7. The lead liaison communicates with ACEP Staff within fourteen (14) business days of receipt of the document regarding the information received, requests additional information that may be needed, and clarifies any issues.
    8. Once finalized, the case summary and any pertinent documents as identified by the lead liaison are forwarded to the panel for review.
    9. Within one-hundred twenty (120) business days of receipt of the summary and documents, a conference call is conducted with the panel to determine whether:
      1. There is a specific, stand-alone issue of care that can be addressed in this case. If not, the process terminates and a decision not to review is communicated to the requesting member by the lead case liaison.
      2. If it is clear that medical literature contradicts the statement of the expert in question, or if not, that there is a consensus of expert clinician opinion that disagrees with the statement in question, a member of the committee is assigned to develop an article for an ACEP communication vehicle describing the testimony given and why it does not accurately reflect the standard of care in emergency medicine.
    10. Case liaisons may participate in deliberations of the committee regarding the case.
    11. A majority vote of those participating on the call will determine the final decision.
    12. Within fourteen (14) business days of the decision, the lead liaison drafts communication to be sent to the requesting member regarding the disposition of the request without providing any specifics as to the deliberations or the final decision.
  1. Code of Ethics for Emergency Physicians (Approved by the ACEP Board of Directors in 1994; Revised in 1996 and 2001)
  2. Expert Witness Guidelines for the Specialty of Emergency Medicine (Approved by the ACEP Board of Directors in 1990; Revised 1995 and 2000)
Approved, ACEP Board of Directors
Revised January 2008


Category: Medical Malpractice

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