Emergency Physicians as Expert Witnesses


Emergency physicians occupy a unique role in the health care system. They provide emergency care for those critically ill and injured while also providing episodic care for a wide variety of patients with less serious problems. There remains some controversy regarding the definition of primary care as it applies to emergency medicine, but most of our practice involves patients with whom we do not share an ongoing physician-patient relationship. Emergency department care is delivered to multiple patients simultaneously. Smaller emergency departments may see 20 patients per day while staffed with a single physician. Larger emergency departments may be staffed with dozens of physicians and see over 300 patients per day. The environment can be stressful and chaotic. Despite these challenges plus frequent under staffing, critical and life-saving decisions must be made each day. These decisions must be made with the limited amount of information which is available at the time. A focused history and physical exam is performed in conjunction with appropriate but limited laboratory and radio-graphic testing. Review of prior medical records, when available, is crucial. A differential diagnosis is generated and further refined to a tentative diagnosis and an appropriate disposition.

Given all these variables, the definition of standard of care as it applies to emergency medicine is a real challenge. It is simply not possible to reach a correct diagnosis for each patient. The patient may not be able to give an accurate history and family may be unavailable. Physical exam skills are important to gather useful clues. Labs and radiographs must be interpreted accurately, sometimes without available radiologists, but may be non-specific or even confusing. The clinical picture often unfolds one piece at a time much like a puzzle, with the diagnosis not clear till enough pieces of information have been obtained and assembled correctly. It is frequently easier the next day to realize the correct diagnosis with the benefit of time, more testing, and response to interventions. This is what we call “retrospective” medicine.

medical doctor's stethoscope on briefcase

Emergency Physicians used in Medical Malpractice

The first question which must be answered in determining malpractice is whether negligence has occurred. This requires a thorough understanding of the standards of care in emergency medicine and the realities of emergency department care. Negligence is more complex than a simple missed diagnosis. One must ask what a reasonable emergency physician would do given the clinical presentation at the time of the patient arrival in the emergency department. It is crucial not to be biased by the subsequent events and additional information which may become available. Even without a definitive diagnosis, it is imperative that emergency physicians identify those patients with a significant likelihood of serious illness leading to potential morbidity or mortality. These patients simply cannot be discharged and must be admitted for close observation and further testing. This rule is best applied to patients with chest pain presenting to the emergency department as it is very difficult, if not impossible, to accurately risk stratify these patients upon initial presentation.

How are standards of care in emergency medicine determined? These standards of care are determined from multiple sources and evolve over time as health care and technology changes. An emergency physician must possess a knowledge base which is extensive and encompasses a subset of all specialties. One must be familiar with those aspects of medicine, surgery, obstetrics, gynecology, and pediatrics which may cause a patient to present to the emergency department. This is very different from an office-based practice in that it is unscheduled and unpredictable. Standards of care do not arise from a single textbook. Although textbooks are a great source of information, they tend to be collaborative with hundreds of chapters, each written by a different author and often years out of date by the time they are printed. Research is critical in that studying the emergency medicine literature provides a sense of the current body of knowledge and the future trends in diagnosis and management. Participation in research and the writing of scholarly articles and textbooks provides the physician with expertise in focused areas. In addition, national or regional meetings and academic societies provide a forum where controversial issues are discussed and state-of-the-art research is first presented. This collaborative type of discussion, which frequently involves speakers outside the specialty of emergency medicine, contrasts to the simple, factual and didactic information transfer which occurs from reading a textbook.

In summary, simply practicing emergency medicine is not enough to qualify one as an expert witness. A comprehensive knowledge base is best obtained by completion of a certified residency training program in emergency medicine. Residency training not only teaches the body of knowledge which must be mastered but also provides much more. Medicolegal issues, information systems, physician-patient communication, and administrative topics provide a framework to be a successful emergency physician. Practicing emergency medicine in a large, high volume emergency department is essential to experience a wide breadth of pathology (especially pediatrics and trauma) yet remain conscious of the limitations experienced in smaller departments with less specialty backup. A commitment to teaching provides a constant reassessment of the literature and an ongoing discussion of evolving management strategies. Teaching hospitals provide an important venue where standards of care are analyzed and criticized on a daily basis both at the bedside and in the classroom. Case management conferences, where patient management is discussed retrospectively by a group of physicians, provide an opportunity to experience different management options and see the variation in practice styles.

It may seem obvious but an occasionally overlooked issue is that emergency physicians must be judged by their peers. The emergency department is a “fishbowl” where we provide care and then transfer that care to another physician who usually knows the patient better than we do. Plaintiff attorneys will try to belittle the specialty of emergency medicine and claim that we are not experts in anything but defer to their medicine and surgical experts. These experts confine their practice to a limited type of patient and see patients individually in their offices, not in a chaotic emergency department. Only a qualified emergency physician can truly determine a deviation from the standard of care in emergency medicine. It is a unique skill to sort out a large number of undifferentiated patients presenting to an emergency department with often perplexing complaints and limited ability to communicate. Evaluating this care can only be done by someone who shares the same experiences.

Board Certified Emergency Medicine Expert Witness No. 1172 from New York