Perspective: What is a “reasonable and prudent” physician?
It seems such a simple question: Given a specific set of facts concerning the presentation of a patient in the ED, what would the prudent and reasonable physician do? In this month’s guest “Perspective,” Dr. Mark Plaster takes a look at why the “best” care need not be the standard for the “reasonable and prudent” physician. More ->

Maryland hospitals recommend malpractice attorneys
Some 2 dozen Maryland hospitals including the University of Maryland Medical System are referring injured patients to plaintiff lawyers. The goal is to  settle claims more quickly, a potential benefit to both the patient and the institution. Despite the appearance of a conflict of interest, it is not unethical by ABA guidelines. [Editor's note: I have been told by both plaintiff and defense med-mal attorneys that it is always best to have a well-qualified opponent. Whether this system assures that or not remains an open question.]

Discharge instructions: Patients get them, but do they GET them?
While every patient discharged from the ED should receive instructions on followup care, not all understand those instructions. This was discussed in a “Perspective” in the August 2011 issue of this Bulletin. Now, Bogenstatter et al. have reinforced previous studies in finding that only 43% of patients left the ED correctly informed about diagnosis, planned examinations and followup. They correctly recalled 82% of information received about diagnosis, 56% about examinations planned and 72% about follow-up treatments. Information related to medication was most often forgotten or misunderstood. Despite this lack of comprehension, patient satisfaction was high (4.7 on a 5-point scale).

Providing futile care is not malpractice
Some have argued that providing care when there is no expectation of value is malpractice. In a NY case, an obstetrician performing an emergency C-Section after a sudden fetal demise could not be sued for attempting to save the baby’s life. Suit was filed against the hospital for the demise, but also against the operating surgeon for attempting an “unnecessary procedure.” The defendant doctor, acting only in the emergency, had not been involved in events leading up to the demise. The latter claim was dismissed, with the court deciding that the defendant surgeon “could not have concluded the fetus was beyond help, based solely on the inability to detect a heartbeat.”

EMRs may create additional legal liability for physicians.
Here’s another article on the risks of EMRs in medical practice. Data breaches and audit trails  continue to take their toll, with the metadata sometimes helping, often hurting defendant physicians, and rapidly raising the costs of  discovery by forensic technicians. “Did the doctor actually see the lab results?” is now a provable question.

Physicians can be sued for just about anything

• In February the Utah Supreme Court ruled that a physician may be sued for malpractice by a third-party. Children whose mother was shot by their father while he was on psychiatric medications sued the prescribing providers. The father, who is in jail, claimed “the medicine made me do it.” The Utah Medical Association responded, saying “Prescribing medication is not an exact science, especially when it comes to mental health. [This decision] fails to recognize no human brain is identical to another. What might be helpful and curative in 1,000 patients, could, in the case of one patient, be harmful.”
• And in Pennsylvania, the Supreme Court ruled that physicians can be sued for infliction of nothing more than emotional distress. A woman who delivered a baby with multiple deformities after being told by her physician that an ultrasound showed a normal fetus was allowed to pursue her claim against the physician for emotional distress. Click here for court transcript.

Fortunately, neither ruling addresses the merits of the lawsuits themselves.

Malpractice payout stats for 2011
For a quick graphical overview of 2011 med mal payouts, prepared by Diederich Healthcare, click here.

March, 2012

[Editor's Note: This month's "Perspective" comes from Mark Plaster MD, Editor of Emergency Physicians Monthly. It was first published December 5, 2011, and is edited for brevity.]

It seems such a simple question: Given a specific set of facts concerning the presentation of a patient in the ED, what would the prudent and reasonable physician do?

This is the “standard of care” against which a physician’s actions will be judged in a case of alleged negligence. Each state has their own set of jury instructions that defines the standard of care. Most say something like Connecticut’s, where “the standard is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

The question then is what is “acceptable and appropriate” to a “reasonably prudent” emergency physician?

Emergency physicians seem to have a hard time with this simple standard. Where they have problems is that they do not want to accept that many reasonable and prudent courses of action can have bad outcomes. They assume that any course that could have been taken to avoid the bad outcome should have been taken. They assume that, being the smart and reasonable doctors that they are, they would have foreseen the untoward outcome and taken the higher road to the right answer. Thus, even if only 5% of the physicians would actually have taken this course of action, that course would be the standard of care.

This, of course, is illogical.

There remains a lot of room between best practices and negligence. Emergency physicians do themselves a disservice – and misinform our patients and the courts – to suggest that anything other than the currently held best practices is negligent. When best practices are first promulgated they are hotly debated – as they should be. Eventually they become accepted, but that is a process, not an event. There are still early and late adopters, and each clinician has his own reasons for being one or the other.

While it is true that the best practice eventually becomes the standard of practice, we should be wary of labeling everyone who adopts later than me, negligent.

As we begin a new year, I want to thank each you for your encouragement and support of the Medical Malpractice Bulletin, now entering its 4th year. I have enjoyed sharing this information with you and look forward to continuing to assist you in resolving issues related to medical malpractice and personal injury.
Charles A. Pilcher MD FACEP

In this issue:

• Perspective: Who’s to blame when bad things happen?
• EMRs may increase malpractice risk
• “Lack of informed consent” case still requires medical expert.
• Effect of fatigue on performance
• The specialty and facility matters: Michigan Supreme Court remands malpractice case to Appeals Court
• Bitten by orca – initial encounter

Perspective: Who’s to blame when bad things happen?
This month’s guest “Perspective” is by Mark Plaster, MD, and was first published in Emergency Physicians Monthly, June 14, 2011. It is edited and reprinted with permission. The opinions expressed are those of Dr. Plaster and reflect his experience with a specific case example. Generalization is discouraged./CP

Over the years I’ve gotten many calls like this one. “Will you look at this case? Something very bad happened and I think someone screwed up.” I hate those calls.

The case that comes to mind was both heartbreaking and frightening. A healthy young Asian man, not yet 21, the pride and joy of his family, went to a local hospital ED with abdominal pain. After an evaluation that revealed nothing of substance, the EP decided to admit the patient. While treating his pain, he admitted to the parents that he wasn’t sure what was going on. After 15 hours in the ED complaining of severe, unrelenting pain, he suddenly and inexplicably died. Who’s to blame?

EMRs may increase malpractice risk
In my own case review experience, I have seen worrisome documentation appearing in electronic medical records (EMR) as the technology has evolved. EMRs provide no “color” to illustrate a physician-patient interaction and, though legible, make a malpractice case harder, rather than easier, to defend. A recent “white paper” by Anderson and Ozeran published by the AC Group thoroughly reviews several potential pitfalls these records present. Among them are:

• too many “normal” indicators that may be “group checked” when an abnormality might actually exist
• failure to check obviously abnormal findings, leading one to question the thoroughness of the exam
• too focused on documentation for billing purposes rather than communicating medical information and thought processes
• inability to provide drug or lab alerts
• failure to create alerts for more frequent mammograms if a female patient has indicated that her mother has had breast cancer
• inability to run drug interaction checks for prescriptions
• ability to mine metadata and follow audit trails, perhaps proving that a chart or portion thereof was never accessed.

“Lack of informed consent” case still requires medical expert.
Apparently, some plaintiff attorneys, particularly in Ohio, thought that by claiming a patient had not been properly “consented” they could avoid a medical expert. The Ohio Supreme Court recently disagreed, saying that informed consent is an integral part of medical practice and that such cases must be supported by expert testimony before they can proceed to trial.

Effect of fatigue on performance
Fatigue may occasionally be alleged in a medical malpractice case. The case may involve the end of an emergency physician’s night shift, an OB doc doing her 7th delivery in 8 hours, or an on-call surgeon who has not slept in 24 hours. For a complete analysis of this issue prepared by the Joint Commission (formerly JCAHO) check out their “Sentinel Event Alert” for December 14, 2011, entitled “Health care worker fatigue and patient safety”

The specialty and facility matters: Michigan Supreme Court remands malpractice case to Appeals Court
A Michigan Family Physician working in an Urgent Care Center was sued for malpractice. The trial court found in favor of the defendant physician. On appeal, plaintiff’s claim that the physician was actually practicing Emergency Medicine in an ER-equivalent prevailed. The Michigan Supreme Court then heard the case and remanded it back to the Appeals Court, stating that the court must consider that an Urgent Care Center is not an Emergency Department and that the physician was indeed practicing within the specialty of Family Medicine. More to come apparently.

Bitten by orca – initial encounter
A new billing and coding system, ICD-10, has been mandated to take effect in October, 2013. A recent article in the Wall Street Journal reviewed the system and found much unfathomable and absurd detail. The authors suggest that no reader should be left wondering why physicians’ and practice staffs’ are frustrated by the current health care system. Here’s an example – you decide:

• Code W5621XA    Bitten by orca, initial encounter
• Code W5621XD    Bitten by orca, subsequent encounter
• Code W5621XS     Bitten by orca, sequela

Just how many orca bites might one suffer in one’s lifetime? Even a trainer at SeaWorld?

This month’s guest “Perspective” is by Mark Plaster, MD, and was first published in Emergency Physicians Monthly, June 14, 2011. It is edited and reprinted with permission. The opinions expressed are those of Dr. Plaster and reflect his experience with a specific case example. Generalization is discouraged./CP

Over the years I’ve gotten many calls like this one. “Will you look at this case? Something very bad happened and I think someone screwed up.” I hate those calls.

The case that comes to mind was both heartbreaking and frightening. A healthy young Asian man, not yet 21, the pride and joy of his family, went to a local hospital ED with abdominal pain. After an evaluation that revealed nothing of substance, the EP decided to admit the patient. While treating his pain, he admitted to the parents that he wasn’t sure what was going on. After 15 hours in the ED complaining of severe, unrelenting pain, he suddenly and inexplicably died.

The young man’s father, a friend of a friend, asked me to investigate. I vacillated between the fear of being unable to give a satisfying response, or worse, having to face and reveal the failure of a colleague.

The father had no records of his son’s previous medical care but said the family history was negative and his son had been relatively healthy and active. He enjoyed breakdancing with his friends.

I looked through the ED record. Severe abdominal pain for an hour or two after a vigorous workout, mostly right lower quadrant, some radiation to the back, no fever, some nausea and dry heaves. It looked much like many kidney stones I had seen. There was a confusing leukocytosis. I could see the EP asking himself whether this might be appendicitis, but a CT of the abdomen didn’t help much.

“So what happened then?” I asked the young man’s father.

“His eyes just rolled back and he fainted. Everyone rushed in and began working on him. They said his heart stopped. They put a needle into his heart, but they didn’t get anything. Then they put a tube into his chest and got a lot of blood.”

But why would this young man have blood in his chest?

I turned to the autopsy results: “Aortic dissection.”

I sat stunned. I had seen pictures of this young man. He didn’t have Marfan’s syndrome. “Friable vascular walls raising the possibility of Ehlers-Danlos Syndrome” commented the pathologist. I questioned the father about elastic tissue. Nothing. I sat quietly processing the awful scene, a whole team of bewildered physicians and nurses trying to resuscitate a young man who had quietly exsanguinated right in from of them.

“There is no possible way they doctors could have known what was happening with your son,” I told the father with finality. “I know that you want to find someone responsible for this awful tragedy. But they did the best anyone – and I mean anyone – could have done under this circumstance.”

“Couldn’t they have done something?” he asked plaintively.

“I am so, so sorry for your loss,” I said, wishing I could reach across the room to comfort the soul of the grieving man. “But the doctors acted reasonably, by anyone’s standard.”

I scanned the chart one last time to see if anything at all would give a clue, some insight into the final outcome. Then I saw it: a clue to the depth of the family’s pain. The record clearly indicated that the patient and his mother had been offered an elective exploratory laparoscopy. There were no details of the discussion, but they clearly had declined the one opportunity to possibly discover the cause of his illness. Yes, the mother was blaming herself for failing her son.

“You need to tell your wife that it was not the doctor’s fault,” I said, “but you need to tell her it wasn’t her fault either. Sometimes bad things happen. And it’s no one’s responsibility.”

Mark Plaster MD

Perspective: Door-to-needle times for tPA in stroke hard to meet

By Charles A. Pilcher MD FACEP
September/October, 2011

Under current guidelines from the American Stroke Association, tissue plasminogen activator (tPA, commonly known as a “clot buster” drug) should be administered within 3-4.5 hours of “last seen normal” – and 1 hour of patient arrival – to potentially ameliorate a new onset stroke. While tPA remains the standard of care, outcomes are not guaranteed and risks are significant. Every case is different. Reducing the time needed to deliver clot-busting tPA to patients with ischemic stroke is critical. To read “the rest of the story,” click HERE.

Did the doctor see that? Audit trails of EMR metadata provide compelling record of “if and when”
Many malpractice cases hinge on the question of “Did a practitioner actually see an item in question, and if so, did he/she act on it. As electronic medical records http://pilchermd.com/2008/03/30/template-charts-and-the-emr-the-good-the-bad-and-the-ugly/ evolve and become more common, these questions are readily answered. Every EMR keeps a record of who accessed a chart, what part, and when. While accessing the data may require a forensic IT specialists, a simple request for production may be sufficient. A few EMR’s may have the option of disabling the audit trail or metadata – a bad idea – and another article addresses that.

How can you sue when records are missing? Indiana high court limits liability for lost medical records.
An Indiana hospital was unable to find important portions of the medical record of a patient experiencing birth complications. The Supreme Court recently ruled against the plaintiff who had sued the hospital in a separate action for this failure, saying that “health records maintenance is considered the practice of medicine, and plaintiffs suing for medical negligence cannot bring a separate action over the loss of the documents.” This appears to have been an effort to bypass caps on malpractice suits, but it does raise questions. Will court sanctions for lost records be sufficient? What prevents records of bad outcomes from being routinely destroyed? A portion of the answer may lie in jury instructions, which allow a jury to presume that the lost evidence was unfavorable.

Expert witnesses on trial
“State legislators, physician organizations and courts are taking steps to ensure that the experts provide ethical and appropriate testimony,” writes Alicia Gallegos in AMA News. At least 30 states have laws governing expert witnesses, and courts also are taking stronger stances against questionable experts. For example, high courts in Arizona and Maryland in 2009 upheld as constitutional state restrictions against expert witnesses. Among the positions adopted are:

• restricting the use of expert witnesses in Florida to those who are certified
• requiring experts in Arizona and Minnesota to practice in the same specialty as the physician defendant
• mandating that Maryland witnesses actually spend time actively practicing medicine
• investigating complaints and publishing testimony provided by physician witnesses (AAEM)
• disciplining doctors who provide unethical testimony (Mississippi, North Carolina, and many other State medical boards, as well as neurology and neurosurgery specialty associations)

The AMA in June approved a report outlining model legislation for expert witnesses that requires experience in the same discipline as the defendant, board certification, or a significant recent teaching role at an accredited medical school.

Preventable mistakes kill 34 in Oregon hospitals in 2010.
According to data from the Oregon Patient Safety Commission published by the Portland Oregonian, preventable errors led to 34 deaths in Oregon hospitals in 2010, the same number as in 2009. If aviation had this kind of record, how many people would still fly?

Bitten by orca? No problem. New medical billing codes include bizarre injuries.
The new ICD-10 (International Classification of Diseases) codes used by doctors and hospitals for billing for their work are coming soon. “There’s a code for that” is likely to become the new catch phrase. “Bitten by orca – initial encounter” could only be confused with “Bitten by orca – subsequent encounter.” Or was it a sea lion? How about a “turtle bite” – or was it actually a “tortoise”? Perhaps one is injured by a burning water ski. Yup. There’s a code for that. Medical coders will soon be able to specify whether someone was injured by walking into a lamppost, or it falling on them. While crocheting? Or was it knitting? Playing the piano, or worse yet, vacuuming? Injured in a chicken coop, opera house or prison kitchen? Crushed by an alligator? Blown apart by a letter bomb? Not a problem. The federally-mandated codes will be increasing from the current 18,000 to over 140,000.

Perspective: Emergency Department discharge instructions: “Sign right here and your good to go.”
———-
By Charles A. Pilcher MD FACEP

So you’re not having a heart attack like your wife thought. That’s the good news. But what **is** wrong, what **did** cause that pain, and what should you do from here on out?

That’s the information that is supposed to be conveyed in discharge instructions, and it’s not enough for the ED staff to just print out some forms, say “sign here,” and send you on your way.

What constitutes good discharge instructions, and why are they critical in the decision to pursue or defend a malpractice case? More ->

Also in this issue:

• Teamwork more important than alertness in major surgery
• Simpler “hands only” CPR now the standard
• Korean emergency physicians read 99.5% of x-rays correctly in minor trauma patients.](
• Indiana court: New claims can’t be added to lawsuits after panel’s review
• “I want to apologize but my insurance carrier won’t let me“
• Ohio court ruling may lead to more lawsuits against physicians
• Physician can’t escape lawsuit by claiming medical student observing surgery made doctor an “arm of the state.”

Teamwork more important than alertness in major surgery (alerted by NY attorney Gerry Oginski)
Fatigue is commonly implicated as a source of medical and surgical error, with complications being more common during night time surgery than in the day. And, in 2003, a law was passed prohibiting doctors-in-training from working over 80 hours per week. However, a new study of nearly 30,000 heart and lung transplants suggests that fatigue can be mitigated if the physician is surrounded by a cohesive and supportive team. The authors found equal results when comparing late-night chest transplants to mid-day chest transplants. They surmise that “health care personnel involved in the transplant have developed various systems to prevent errors and directly cope with the limitations associated with nighttime medical care… [H]eart and lung transplant teams include surgeons, anesthesiologists, perfusionists, and operating room staff who work together routinely and can be mobilized rapidly for transplant operations. Such routine camaraderie and familiarity likely diminishes the novelty of the operation, lessening the burden and strain of the nighttime environment.”

Simpler “hands only” CPR now the standard
The American Heart Association has eliminated the need for mouth-to-mouth breathing as a component of CPR. The newer, simpler method is to use “chest compressions only” for victims of cardiac arrest. This should be done at a depth of about 2 inches at a rate of 100 beats per minute. That rate is the same as the beat of the BeeGees classic “Stayin’ Alive.” (Coincidentally, it is also the meter of the British rock band Queen’s  “Another One Bites the Dust.”)

Korean emergency physicians read 99.5% of x-rays correctly in minor trauma patients
In a Korean study of 10,243 minor trauma patients, the total “discrepancy rate” between the emergency physician’s reading of an x-ray and that of the over-reading radiologist was 0.77%. However, only 0.47% of the discrepancies were clinically significant. [Based on this editor's experience, that is about the same as the rate at which the over-reading radiologist misses findings found by the emergency physician.]

Indiana court: New claims can’t be added to lawsuits after panel’s review
An Indiana plaintiff’s case was found to be without merit by a medical review panel. The patient chose to file suit despite the findings, but added 3 new claims in the lawsuit. This was challenged by the defense, and the Court of Appeals agreed, saying that all questions of the standard of care must be presented to the medical review panel first. The court ruled that “a malpractice plaintiff cannot present one breach of the standard of care to the panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion.”

“I want to apologize but my insurance carrier won’t let me”
When reporting a potential claim to their insurance carriers, physicians are routinely told to stop all contact with the patient or their coverage will not apply. But studies show that a quick and sincere apology, an explanation of what happened, and an offer of settlement reduce the cost of malpractice significantly. A recent post by Kathleen Clark PhD on the highly respected blog of Kevin Pho, MD, addressed this issue. In a comment below the article, Martin Young MD described his experience like this: “I felt trapped behind a wall of silence that was created by my insurers. My instincts to right the wrongs as suggested in the post were forbidden by the only ones likely to profit from the situation – my lawyers! Damned if I do, damned if I don’t!!” Dr. Clark responded to Dr. Young’s comment, saying, “Did you tell your carrier that you wanted to have the conversation with the patient/family as quickly as possible to save them [from] waiting and wondering? The longer time goes by without that conversation/contact with the patient, the more resentment and mistrust grows and the more likely litigation will follow. In addition, it is your relationship with your patent that is being destroyed…. The culture of the carrier has to shift.”

Ohio court ruling may lead to more lawsuits against physicians
An Appeals Court in Ohio recently supported a trial court ruling allowing a patient to proceed with a lawsuit against a physician even though it had been over 10 years since the alleged act occurred. The State of Ohio’s “Statute of Repose” limits lawsuits to 4 years following the alleged act, and the “Statute of Limitations” says that the lawsuit must be filed within 1 year of discovery of the alleged act. The case involves a patient whose liver enzymes were abnormal in 1995, 1997, and 1998 but the patient was not informed. He was diagnosed with liver cancer and hepatitis C in 2008. If the ruling is supported by the Ohio Supreme Court, physicians worry that they will be exposed to “an endless risk of negligence claims.”

Physician can’t escape lawsuit by claiming medical student observing surgery made doctor an “arm of the state.”
This newsletter previously reported on an Ohio physician who was claiming to be immune from lawsuit because a University of Toledo medical student was observing the surgery in the doctor’s office at the time. He claimed he was acting as an “arm of the state,” and that the State of Ohio should be the defendant. The Ohio Supreme Court unanimously disagreed, allowing the suit against the surgeon to proceed.

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
• Washington State considering changes to current tort system
• More sensitive troponin test may lead to better diagnosis of heart attacks
• Radiology jobs not easily outsourced to India.
• There’s an app for that. Will a lawsuit follow?
• Current guidelines may prevent healthcare malpractice solution from succeeding
• Dealing with the hostile medical expert witness

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 www.wsma.org/cart/onDemand.cfm.

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.

June, 2011
By Charles A. Pilcher MD FACEP

What is value?

Based on the repeat business I get from numerous defense and plaintiff attorneys, I must be providing you with value. “Value” is defined as quality divided by cost. When I read depositions, it’s apparent that attorneys are not always getting uniform value from their experts. The physicians who choose to participate in our system run the gamut in both expertise and charges for their services. Both testimony (quality) and hourly rates (cost) range from superb to appalling. Thus, “value” is even more variable.

How much does “value” cost?

I recently ran a “value calculation”on my own services, using my charges for the past 20 closed cases on which I have been consulted. Fifteen cases were for plaintiff attorneys and 5 for defense attorneys. Twelve of the 15 plaintiff cases resulted in the attorney choosing not to file a lawsuit. Charges billed for those cases averaged $976.00. For the 3 plaintiff cases in which a settlement was reached, my average billed charges were $2266.00. For the 5 defense cases (all resulted in a pre-trial settlement), my average billed charges were $2155.00.

When one hears of experts charging 3-5 times more than that in retainer fees alone just to look at a case, one has to ask if attorneys are truly getting value from those opinions. Are they getting quality, and at what cost?

The plaintiff attorney reaction:

If you are a plaintiff attorney, you may view these figures as “leaving money on the table.” I find that most plaintiff attorneys are perceptive enough to know a good case from a marginal one. You don’t want to waste your time and your – or your client’s – money on a case that is unlikely to be resolved in your client’s favor. After I have given you my opinion, you are free to seek a second opinion from whatever higher priced “hired gun” you choose, but that has only happened once.  I also always offer to speak with your client about my findings and have done so on several occasions. I believe that because of the value you perceive in my opinions, you are able to serve your clients better. As one attorney has told me, “Every client I see has come to me after a bad medical result. The last thing they need on top of that is a bad legal result.”

The defense attorney reaction:

If you are a defense attorney, you may view these figures as ridiculously low. Defense attorneys are usually spending “other people’s money” to tap published, high-powered, high-priced, academic experts to support your positions. The problem with these experts is that they often have “tunnel vision” as to the standard of care, espousing an approach as “the only way this should ever be done.” These experts leave themselves wide open for a well-reasoned challenge from an experienced clinician with a firm grasp of the actual standard of care in the community. In medicine, there often is “more than one way to skin a cat.” You may also be asking why all 5 cases were settled. In every one, I felt the matter defensible, but insurers chose to settle rather than risk a potentially more expensive jury verdict.

Are you getting value?

In a sense, a good portion of my work for plaintiff attorneys keeps physicians from being sued – and I am proud of that. But when substandard care exists, and it does, I am equally proud of having the courage to speak up on behalf of an injured plaintiff. Similarly, when working for the defense, I provide an opinion based on both the strengths and weaknesses of the record, which I trust encourages aggressive defense or settlement as circumstances warrant.

There is a lot of talk in medical circles and in government about getting value – better quality at lower cost – from our healthcare dollars, by eliminating waste in the system. The same can be said for malpractice cases. In medical practice, patients often make their own diagnoses and demand certain tests and treatments, rather than asking for a learned opinion from an experienced clinician. Some malpractice attorneys do the same. Whether defense of plaintiff, they may think they know more than they do and are willing to pay huge sums to find testimony that supports their opinion – to the detriment of themselves and their clients.

Value is the goal. Are you spending more than you need to obtain an opinion that is of less quality than you and your client deserve? Are you getting value from your experts?

If I can help you answer that question, please consult my CV and contact me. I have undoubtedly worked with an attorney whom you know and can contact for a reference. Word of mouth referrals have allowed me to work with over 100 attorneys in Washington, Oregon and elsewhere in the past 30 years.

May 30, 2011
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. They presented a variety of scenarios to physicians in which the care was either outstanding, good, below average or poor. In some of the scenarios, they provided the physicians with the outcome as either “good” or “bad.” In other versions of the scenarios, the physicians were not told the outcome.

What they found was that “outstanding” care is recognized as such, and the opinion of that care goes up somewhat when the outcome is known to be good. “Poor” care is recognized as such, and the opinion of that care goes down somewhat when the outcome is known to be bad. These cases were less susceptible to “outcome bias.”

The kicker is in the intermediate cases. When the scenarios described care that is either “good” or “below average,” the opinions of the evaluators changed significantly when the outcome was known. However, the authors found that “the raters were more likely to give scenarios that ended well the benefit of the doubt than they were to downgrade those that ended badly.” Specifically, knowledge of a good outcome improved the rating of care one whole point, e.g., from “good” to “outstanding” or “below average” to “good.” The change downward was less marked when the outcome was bad.

Most cases coming to defense and plaintiff attorneys are not black or white. They are various shades of gray. And Gupta et al’s study shows why post hoc knowledge of the outcome of a questionable case will affect the opinions of experts – in both directions. One can provide sub-standard care, but when the person calling that care sub-standard learns that the outcome was good, the doctor is often given a pass, with the idea being “I guess the care wasn’t all that bad, since nothing bad happened.” On the other hand, care that might be considered standard will  often be downgraded to sub-standard when the outcome is bad, but the change is not as great as when the outcome is good.

When the care is obviously good, a plaintiff expert should be able to dissuade the attorney from pursuing a case and a defense expert should be able to convince an insurer to defend their client to the max. When the care is obviously bad, a plaintiff expert should be able to explain to the attorney why the case clearly has merit, while a defense expert should be convincing the insurer to settle as cleanly and quickly as possible. This does not mean the case won’t go to trial, or that each side won’t try to prevail, strengthen their position, maximize recovery or minimize loss. Again, as the authors state, “Medico-legal cases for which care is clearly substandard are not problematic because the discussion focuses on the amount of compensation rather than whether there was any wrongdoing. However, for many cases, there is ambiguity about the quality of the process of care, and for these cases the presence of a bad outcome may affect assessments.”

Anyone involved in litigation, either doctors or attorneys, has recognized this. The value of Gupta et al’s study is in their ability to quantify what we already know about human nature. The authors caution that “experts who predominantly offer plaintiff or defense testimony may have particular outcome biases, especially because they foster continued referrals.”

This knowledge may not change the outcome of a particular case of alleged malpractice, but it is valuable information to have in one’s back pocket when hindsight gives an expert 20/20 vision.

This issue will be discussed further in the June “Perspective” entitled “Are you getting value from your expert witnesses?”