Malpractice: A different kind of tort reform
This internist uses evidence-based medicine to help lawyers handle malpractice cases.
Todd Feinman, MD
Medical Economics

When I answered the knock on my door back in December 1999, I found a courier from a Los Angeles law firm holding a summons. There was my name in bold print, next to those of several other defendants in a negligence suit: an HMO, a nursing home, two other doctors, a large medical group, and the hospital where I worked as a hospitalist. Like most of my doctor friends and colleagues, I had finally joined the malpractice club.

The case involved an elderly patient who had died after being treated for a Pseudomonas infection and chronic renal failure secondary to multiple myeloma. In the complaint, the primary allegation against me was failure to properly treat the patient. When I met with the attorney assigned to me by my malpractice carrier, he assured me that two experts had already reviewed the medical charts and concluded that my treatment met the "standard of care." He explained that, of course, the plaintiff's attorney would also hire experts, and they would claim that I hadn't met the standard of care.

When I asked how standard of care is defined, my attorney said, "The courts only require that in their diagnosis and treatment, physicians exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by a member of the same specialty under similar circumstances."

Defining standard of care

Standard of care wasn't taught during my medical school years or residency training. We didn't walk around the hospital asking each other, "What would a reasonable physician in this community do in this situation?" Instead, we were required to use medical outcomes data and evidence from clinical trials to identify the right tests and treatments for our patients. We looked in reliable medical journals or asked our teachers for evidence about accuracy of diagnostic tests, and efficacy of treatments.

During the next few months, I learned about depositions, summary judgments, and other legal procedures. I memorized the medical charts for this patient, and asked my hospitalist colleagues if I'd done the right thing for the patient. They all agreed with my medical decisions, but I still didn't feel innocent.

Then one day my attorney phoned me at home and told me, "Congratulations. You've been dropped from the case. But the plaintiff is going to take the other defendants to court, so you'll still have to testify as a treating physician about your medical care."

I felt relieved at being "set free," but I still didn't feel exonerated. I wanted to be judged according to evidence-based medicine—not just by the opinions of some so-called experts. So I asked a medical librarian to check the literature and clinical trials for patients with Pseudomonas colonization and end stage renal failure and multiple myeloma. We found no evidence that any treatment was more effective than what I had ordered, or that my treatment could have hurt the patient's prognosis.

When I told my defense attorney of our findings, he said, "You don't need medical evidence to support your treatment. Our experts already exonerated you." I said that I still wanted the evidence admitted in court as part of my testimony. But he replied, "Medical evidence from clinical trials isn't easy to get admitted in court. It's considered hearsay. An expert or defendant can bring his own experience, knowledge, and training to support his testimony, but you can't bring actual copies of medical or scientific evidence, or quote from it."

"You mean I can rely on that evidence to form my opinion, but I can't cite the data from the clinical trials, or bring copies of the trial results to court? You mean a $500-an-hour expert can say whatever he wants in court, based on his individual experience, but you can't admit medical data that proves that a specific intervention may have caused or prevented a bad outcome?"

"Yes," my attorney replied, "that's how the medicolegal system works."

"In that case," I told him, "the system is broken, and it's time for reform."

When the case came to trial a year later, I spent more than two days on the witness stand. Both sides questioned me about the medical care that I and the other doctors had provided. My attorney managed to give me the opportunity to explain to the jury how valid and relevant medical evidence supported my treatment decisions. Using language even Homer Simpson would understand, I described the outcomes and survival data on treatments for Pseudomonas infections and chronic renal failure.

When the trial was over, my attorney called me at home to report that, although I wasn't a defendant, the jury had made a point of noting that my treatment had met the standard of care. So my evidence-based testimony really had worked.

Still, I remained angry about the way standard of care is measured in court according to the opinions of individual experts rather than actual medical data. So I called the plaintiff's attorney in that case and arranged to have lunch with him. I explained why it's wrong to name a doctor in a malpractice suit—regardless of what a paid expert says—if the medical evidence supports that doctor's decisions. "If the evidence doesn't support your expert's opinion," I told him, "then your case has no merit. How can one medical expert be more knowledgeable than dozens of clinical studies that prove which tests or treatments work best?"

The value of evidence-based testimony

At his request, I met with his legal team later and signed a contract to provide evidence-based testimony services. Since then, I have devoted most of my time to building my company, Doctor Evidence (www.doctorevidence.com). We have used outcomes research and clinical data to convince this law firm and others to drop dozens of nonmeritorious malpractice cases. And when our clinical evidence has shown that a doctor's treatment really wasn't medically appropriate, we've convinced defense attorneys to settle cases without wasting time and money in court.

We were involved in one case, for example, that had been brought against a primary care doctor by the family of a deceased cancer patient. The plaintiff's experts claimed that the doctor should have recommended a specific drug treatment for metastatic colon cancer. But we provided evidence proving that survival rates for patients using that drug are no better than those for the treatment the doctor had recommended. After reviewing that evidence, the plaintiff's attorney dropped the case.

We don't always come down in favor of the doctor, though. In another case, a patient had sued his primary care physician, claiming that his failure to diagnose and treat acute diverticulitis caused a perforated intestine and necessitated a colostomy. The defense experts claimed that the doctor's tests and treatment met the standard of care, so he refused to settle. But we provided evidence showing that there were specific radiological tests the doctor could have ordered that would have led to an earlier diagnosis, thereby preventing the injury. Presented with this evidence, the defense settled out of court.

We have also helped physicians defend themselves against state medical board administrative actions. In one case, a doctor was accused of gross negligence for providing the "wrong" tests and treatment for two glaucoma patients. We provided evidence that showed that university eye centers around the country used the same tests and treatments for glaucoma with good outcomes. After reviewing our evidence, the state board dismissed the case.

Using evidence-based medicine is beneficial for both sides in malpractice cases. Plaintiffs' attorneys can use it to avoid frivolous cases, and concentrate instead on those with merit. Doctors accused of malpractice can use it to defend their medical decisions and care. If it's allowed into evidence, judges and juries could rely on evidence-based medicine instead of the often confusing and conflicting opinions of hired-gun experts.

If the use of evidence-based testimony results in fewer cases going to court, less money would be wasted, and malpractice insurance rates might go down. Instead of talking endlessly about caps on pain and suffering, simply acknowledging and using evidence-based medicine could lead to real tort reform now.


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