Medical Malpractice Bulletin – May, 2011

Perspective: Black, white or gray: Post-hoc knowledge alters opinions of care quality
By Charles A. Pilcher MD FACEP

Medical malpractice is a field where opinion matters. That’s why attorneys hire experts. But how valid are those opinions? On what are they based? Does one’s opinion of the quality of care change when one knows the outcome of the case?

This is the question asked by Dr.Malkeet Gupta et al. in a study published in the April issue of Annals of Emergency Medicine. What they found was that “outstanding” care and “poor” care are recognized as such. These cases were less susceptible to “outcome bias.” But care that was either “good” or “below average” moved up or down a notch, respectively, when the outcome was known to be good or bad.

This has significant implications for those involved in evaluating and litigating cases of medical malpractice. To read the full “Perspective” essay, click here. To read the original study by Gupta et al., click here.

Also in this issue:

Pre-dispute arbitration agreements upheld in med mal cases
A NJ appellate court found that pre-dispute arbitration requirements signed by patients are valid and binding. In a related article from the Cato Institute, Michael F. Cannon discusses the pros and cons of “Reforming medical malpractice liability through contract” to reduce malpractice costs and improve the quality of and access to care.

Washington State considering changes to current tort system
(From the April 4, 2011, WSMA, Monday Memo, summarized and published with permission)
The WSMA is one of several organizations that have pushed for an alternate to the current medical tort system. A Washington HealthCare Forum work group put together a concept to offer payment (from a schedule) for patients who experience preventable medical errors. The plan applies to a defined list of 101 Avoidable Classes of Events (ACE) that meet 2 of 3 criteria: 1) iatrogenic, 2) errors of omission and 3) preventable. Funding is from a grant from the Agency for Health Care Research and Quality (AHRQ). The concept is led by MultiCare, with WSMA, WSHA, several insurers and other hospitals involved. A presentation is available on the WSMA website at

More sensitive troponin test may lead to better diagnosis of heart attacks
The Los Angeles Times reported that in research published in the Journal of the American Medical Association, investigators “reported success using a more sensitive test to identify troponin, a cardiac muscle protein.” The study authors found that “adopting a troponin score that is lower than what has traditionally been used resulted in more accurate diagnoses of actual heart attacks.”

Radiology jobs not easily outsourced to India.
With great strides being made in technology and bandwidth, radiologists are able to review diagnostic studies from anywhere in the world, and offshore radiologists may be competing with western trained doctors for this work. MIT economist Frank Levy, there are several factors that prevent radiology jobs from being outsourced to India, including certification requirements, litigation fears, and medical skills that are difficult to master. In fact, contrary to some news reports, only 15 Indian radiologists currently provide the US with service. Considering the country’s weak medical education system, that number isn’t expected to increase in the near future, according to the paper in the British Journal of Industrial Relations.

There’s an app for that. Will a lawsuit follow?
For those techies on the cutting edge of the law, this article from [“Tech News World”] discusses the legal ramifications of healthcare apps for mobile devices. Read it to see who’s at risk. It’s a brave new world.

Current guidelines may prevent healthcare malpractice solution from succeeding
Recent federal budget proposals have offered a plan to “encourage evidence-based medicine by limiting the malpractice liability of doctors who follow clinical practice guidelines — in effect, granting them immunity,” according to an article in the LA Times. But because current guidelines are written mostly by those with “skin in the game,” they are of variable quality and unlikely to “achieve the noble goal of providing quality care at a reasonable cost.” (Click here to read this bulletin’s recent “Perspective” on the value of these guidelines.)

Dealing with the hostile medical expert witness
FYI, this NBI teleconference will be held on June 14. It offers techniques for navigating medical information, protecting your witnesses from abusive cross-examination, and getting the information you want from hostile medical experts.

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