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?”