Peer Expert Ethics
Updated: Nov 17, 2020
Renee Sampson, the Director of Athletic Training at Farmingdale University, was contacted by a local paralegal seeking an expert for a legal claim involving an alleged case of malpractice on the part of an athletic trainer employed at a community college. Ms. Sampson has not previously ever served in an expert or consultative role of any kind. However, for the past 15 years as the director of the clinical AT services at Farmingdale she has been responsible for developing, implementing, and annually reviewing all policies and procedures for 18 athletic teams and some near 400 student athletes. By the very nature of her education, her responsibilities, and her experience, she is more than qualified to speak to the standard of care as it relates to athletic training services.
Upon further learning about the claim, Ms. Sampson is told by the paralegal representing the plaintiff that a 30+ year certified athletic trainer is accused not performing a complete assessment in allowing a 19 year old female soccer player to return to play following a sport-concussion. As a result, a second concussion was sustained that has resulted in permanent injury, an inability to return to competitive soccer, a decrease in her academic performance, and permanent pain and suffering.
While Ms. Sampson does not know the athletic training defendant personally, she is familiar with his name since he has been in the profession for so long. While Ms. Sampson has no formal conflict of interest in serving as an expert in this case, she does have trepidation in facing an athletic trainer who has served near twice as long as she has in the profession. Yet, in her brief discussion with the paralegal, she believes that the defendant may in fact not followed current standards of care regarding return to play following a sport concussion.
Should Ms. Sampson proceed in serving as an expert in this case where she may potentially testify against one of her own colleagues? Does she possess the expertise to do so? Is it her responsibility in any way to professionally review the performance of a fellow athletic trainer and receive remuneration for doing so?
These are just a few of the questions healthcare professionals face when asked to serve as an expert witness against one of their own peers. Only a small percentage of professionals within each discipline will find themselves in the position of being an expert witness. Being an expert is not a task that should be taken lightly. It can oftentimes be intimidating not only the first time one serves as an expert, but in fact even one who has served as an expert on multiple occasions can experience nerve-racking circumstances. What makes it more stressful and difficult to serve as an expert against one of your own colleagues? Many of us are taught to be collegial, respect our peers, and learn from each other in an effort for all of us to provide optimal care to our patients.
At the same time, it is all of our responsibilities to hold each other accountable in seeing that we in fact provide optimal care to our patients at all times by adhering to the standards of care. Barring any conflicts of interest (such as knowing personally, previously collaborating with the defendant, etc..), Ms. Sampson is in her right to serve as an expert. To begin with, Ms. Sampson can lean toward the National Athletic Trainers’ Association Code of Ethics where a number of principles would likely challenge the alleged actions of the defendant, including principle 1.2 that states:
“Member’s duty to the patient is the first concern, and therefore members are obligated
to place the well-being and long-term well-being of their patient above other groups
and their own self-interest, to provide competent care in all decisions, and advocate for
the best medical interest and safety of their patient at all times as delineated by
professional statements and best practices.”
Furthermore, Ms. Sampson should be well-versed in the not only the most current standard of care for sport-concussion management, but also what the standard was at the time of the alleged incident. Ms. Sampson should be familiar with the relevant state laws and/or practice act and position papers. Perhaps of equal important is that at her own university Ms. Sampson can in fact justify that she herself follows the current standards, is well-versed in their implementation, and can translate such standard should be applied equally to the defendant’s setting and circumstances.
It is also Ms. Sampson’s personal responsibility to be prepared in terms of presenting a fee schedule, terms of agreement, and other administrative tasks associated with an expert’s contractual terms with a legal firm. While not critical to the case itself, not being familiar with such documents and procedures may give attorneys cause for caution given one’s lack of experience as an expert.
In summary, serving as an expert is part and parcel to policing our own profession and assuring that we uphold the standard of care. While being an expert is not a role for everyone, it reflects a high level of professional knowledge and responsibility that goes well beyond gossip and opinion in an effort to serve the overall public.