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American Academy of Emergency Medicine

Malpractice

Dear Dr. Walker,

I am a recent EM graduate and current critical care fellow and was reading your article on malpractice in the current issue of Common Sense. Overall I very much enjoyed reading it and wanted to thank you. I also wanted to say that I was struck by your comment that academic physicians are likely not appropriate as expert witnesses for many community cases. I’ve simply never heard this idea proposed before of having academics separated from community providers as expert witnesses in malpractice cases, but I am both curious by it and think that it deserves more consideration. The risk, as I see it, is that the attitude starts to subcategorize EM physicians into such small subspecialties that it may be eventually detrimental in urban settings to our breadth of competence (such as we see with many urban anesthesiologists or general surgeons not being able to practice in cases where they are not subspecialty certified [peds, thoracic] because a subspecialist could be obtained), I think overall we are so far from even having specialty specific rules for expert witnesses across the board that we have a while to go.

Overall your proposal is interesting and thought provoking and I wanted to thank you for it and am curious to see where it goes. Do you plan on writing further about it or advocating for this?

Thank you also for your work as Editor. I thoroughly enjoy reading the magazine.

Sincerely,
Joseph

Joseph Tonna, MD
Critical Care Fellow
University of Washington


Thank you for your letter, and I understand your concern. I felt the same way years ago as I watched the rise of pediatric emergency medicine. After all, emergency physicians are experts in pediatric emergencies - just as they are in adult emergencies, medical emergencies, surgical emergencies, etc. If it's an emergency - whether it occurs in a man, woman, adult, enfant, child, or octogenarian - it's part of our specialty. If we have been properly trained in emergency medicine, then we have been properly trained in pediatric emergency medicine. Now, however, in some quarters even board-certified emergency physicians are looked on as second class providers of emergency care to children - a completely ridiculous and unjustified position. I definitely don't want to further fragment our specialty so that individual emergency physicians are allowed to do less and less, limiting their practices more and more - which, as you pointed out, is what happened to general surgeons. I do indeed see the risk that worries you.

I would not have thought academic physicians were unqualified to comment on the standard of care in community hospitals, had I not seen it with my own eyes. Since becoming an expert witness myself, both deposition and trial testimony from academic physicians has convinced me that most of these experts have no idea what it is like to practice in a small, community hospital ED. They have wildly unrealistic expectations in regard to the time and difficulty involved in getting a consultant to come in or admit a patient, in transferring a patient, in getting a CT scan interpreted, in obtaining an ultrasound or MRI, in obtaining rarely used or expensive drugs, etc. I believe the reason for this is that most academic emergency physicians go straight from residency into an academic attending job, never leaving the academic cocoon. They never practice "in the real world" of a community hospital ED where they don't have multispecialty back-up 24/7. Since the standard of care is what a reasonable physician would do under similar circumstances, not understanding the circumstances makes most academic physicians unqualified to testify on the standard of care in a small, community hospital. I am not saying they couldn't have taken excellent and proper care of the patient, or that they are inadequately trained, so I hope I am not furthering the fragmentation of our specialty - a problem that worries me as much as you. I am saying that if they do not regularly experience the circumstances then they don't understand the circumstances - and thus do not understand what the standard of care is in those circumstances.

In the infantry every general started off as a soldier in the trenches, usually a platoon leader, so he knows what is involved in leading 30 men against a machine gun nest. In emergency medicine, however, few of our academic leaders have ever been by themselves in that lonely outpost, the single-coverage ED where the emergency physician isn't just the only doctor in the ED, but the only doctor in the entire hospital - caught between caring for the ED patient with chest pain and answering a code on the floor at the same time. Those who haven't been there don't know what it is like, and aren't qualified to criticize those who are there.

In answer to your final question, I do plan to seek tort reform in my state so that only board-certified emergency physicians can testify on the standard of care in emergency medicine. Even now I counsel any attorney who retains me that he should attempt to have expert witnesses who are radiologists, cardiologists, neurologists, etc. barred by the court when they are seeking to testify on the standard of care for an emergency physician. That attempt is usually unsuccessful. On the other hand, I have seen more than one case in which an academic expert was barred from testifying because of his lack of undertanding on the standard of care in a small, nonacademic ED. It all depends on the judge involved, and the quality of the lawyers' arguments. Thanks again for your letter, and your kind words for me and Common Sense.

Andy Walker, MD FAAEM
Editor

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