ED Defense Can Counter Opposing Expert’s ‘Flagrantly False’ Testimony
Expert witnesses in malpractice litigation, regardless of whether they are testifying for the plaintiff or the defense, are supposed to be unbiased and offer truthful statements. Yet, some testimony is “flagrantly false,” says Andy Walker, MD, FAAEM, a Signal Mountain, TN-based EP who offers legal consultations on the defense of EPs.
In some ED cases, plaintiff experts make misleading statements about the legal standard of care. In one case, an expert testified that a patient with abdominal pain should have undergone a CT scan. The expert claimed this was the standard of care; therefore, the EP was negligent. “If that was true, it would have mandated a CT scan for every ED patient with abdominal pain. Of course, that’s ridiculous,” Walker offers.
The volume of people presenting to EDs with abdominal pain, and the increased cancer risk from radiation from unnecessary CTs, would make this impossible and ill-advised. “If you point that out to the jury, they usually get it,” Walker explains.
Jurors came back with a defense verdict. “The defense expert rebutted the plaintiff expert’s testimony, and explained to the jury which abdominal pain patients get CT scans, and why scanning everybody would do more harm than good,” Walker recalls.
Some plaintiff experts are “blinded by hindsight bias,” Walker observes. If someone with abdominal pain turns out to be the rare patient with an ischemic bowel and sues the EP, the plaintiff expert already knows how the case turned out. It is easy to ask questions like, “How could you not undergo a CT scan? This person was in such terrible pain.”
The defense team always can call their expert back to the stand to refute what the plaintiff expert stated. “The defense expert should use peer-reviewed evidence to back up what they are saying,” Walker suggests. Another plaintiff expert testified that a patient with back pain who turned out to have an epidural abscess should have undergone a CT scan. The expert asserted the EP breached the standard of care by not obtaining the scan.
Walker, the opposing expert, talked about the reality of ED clinical practice. He noted that an EP would have to see 1,000 or more patients with back pain before finding just one person with an epidural abscess. This testimony allowed the defense attorney to tell jurors, “If you rule for the plaintiff in this case, you’re going to tell emergency physicians that they have to get CT scans for every patient with back pain, which increases cancer risk. Think about the message you’re going to send to doctors with this verdict.”
Some plaintiff experts have not worked in an ED in decades, if ever. This does not stop some of them from testifying about the standard of care in the ED. “They don’t realize how little they know about emergency medicine,” Walker says.
The problem, of course, is that most jurors will not realize it, either. “Laypeople can’t sort through medical evidence themselves. All they have to go on is what the experts say at trial,” Walker observes.
The question, “When was the last time you worked in the ED unsupervised?” can be effective. “Some experts claim that admitting patients from the ED or taking phone consults or transfers from the ED qualifies them to testify on emergency medicine,” Walker notes.
In the end, jurors will go with the expert they find most credible and believable. “Most experts are not unethical. But occasionally you do find one who is just going to say anything for money,” Walker laments.
The defense team can diminish the expert’s credibility with questions such as:
- How many cases have you testified in?
- How many cases in the last year?
- How many were for the plaintiff?
- How much money do you make in a year from legal work compared to your total income?
“If the expert is clearly earning their living by testifying in malpractice cases, they are going to be much less credible,” Walker says.
Hindsight bias, lack of ED work experience, and earning a living through testimony are factors that can make for problematic witnesses.
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