NAEMSP publishes position statement
The National Association of EMS Physicians (NAEMSP) recently published a resource document to support its position paper on expert witness testimony. The resource document articulates the organization’s standards for expert witness testimony and sets the framework for expert opinion testimony in litigation by its unique membership, which includes both physicians and EMS providers.
The paper, published on the heels of the announcement that EMS has now become an officially recognized subspecialty of the field of emergency medicine, takes the important step of setting expectations of the organization for litigation expert testimony by its members. It recognizes the prehospital emergency care provided by its members and addresses the highly specialized issues that arise in EMS litigation. The paper points out the difference between the expertise of individuals who provide emergency care in the out-of-hospital setting and the expertise of those who provide care solely in the hospital or other more controlled clinical settings.
The paper also highlights the clinical and oversight relationship between EMS medical directors and providers, qualifying EMS medical directors to provide expert opinions related to care provided by EMTs and pointing out that physicians lacking experience in this EMS oversight relationship may not be qualified to provide expert opinion testimony about the provision of prehospital care.
As litigation against EMS providers grows, the professional society has taken an interest in ensuring that the behavior of its members when testifying as experts is beyond reproach. The NAEMSP has stated its position that expert testimony provided by its members be only within their areas of expertise and that members not be seduced by ego or money to provide testimony that is unreliable, questionable or outside their particular area of expertise.
The document provides a review of the positions taken by other professional associations with respect to expert witness testimony. The American College of Emergency Physicians (ACEP), for example, has taken the position that expert witness testimony falls within the practice of medicine and asks its members to execute an affirmation statement provided by the College.
The three key points in the NAEMSP paper are qualifications of experts, standard-of-care issues and ethical considerations.
It’s clear that that the EMS expert witness must be qualified to give the proposed testimony, meaning that their experience and knowledge base should have some depth in the particular area being litigated. For example, this means that a member who has never been a dispatcher or supervised the communications center should not be providing provide expert testimony about the standard of care in this arena.
The paper emphasizes the difference between the practice of emergency medicine in the emergency department (ED), and the practice of prehospital EMS. Because many lawsuits involve issues of EMS medical direction, it’s important for the physician expert witness to have experience in the supervision of prehospital EMS. Working only in the ED may not qualify a physician or EMS provider to give expert witness testimony about a practice issue that arises solely in the prehospital context. Expert witnesses should be actively involved in the practice of EMS, not just the practice of emergency medicine, and they should have current understanding of the specific issue in the case.
As for standard-of-care issues, the paper states clearly that expert testimony must be based on a thorough and careful review of available information about the case, as well as the medical literature related to the specific issue that defines the standard of care. This review may include run reports, dispatch tapes and/or logs, protocols, training standards, deposition transcripts and discovery responses.
Experts must fully understand the state and regional differences in how EMS is practiced and must be familiar with the standards applicable in a given community when rendering legal opinions. Simply because a given practice has been proven efficacious in the ED doesn’t mean that the same practice translates to the prehospital setting.
Ethical considerations are also discussed. Testimony should always be truthful, never false or misleading, or lacking in foundation in the medical literature. The expert shouldn’t be related to or closely aligned with the party in whose favor they’re testifying. Members providing expert testimony are cautioned against allowing attorneys to select the documents they will review and to be objective and free of conflicts of interest when signing on as litigation experts. Relevant information should never be excluded to slant an opinion in favor of one side of the dispute.
Although the paper is vague on the issue of discipline for improper expert witness testimony, it does inform members that their testimony may be subjected to peer review within the organization.
NAEMSP has taken an important step in professionalism by stating its position on expert witness testimony. Attorneys representing EMS services will now be able to rely on the organization’s standards to impeach so-called “EMS experts” who lack the expertise to provide testimony against EMS providers.
