In a message dated 7/16/99 10:11:43 AM Pacific Daylight Time,
[log in to unmask] writes:
> Unfortunately jury as opposed to bench trials do not always follow the
> facts. The one element required to support a case of negligent
> treatment in the US that Dr Roscoe has not discussed is that the act
> must violate the "community standard of care." Courts in the US have
> broadened the meaning of community in some cases to mean the whole
> country. The problem is that the "standard of care" lacking published
> and accepted guidelines are whatever an expert testifies they are.
> Thus, if the literature provides compelling evidence that treatment
> should be what the doctor did but the expert can sound convincing to a
> jury that the standard is something else, the defendant will loose.
>
> I have a colleague who lost a half a million dollar judgment when his
> care was completely consistent with the literature. This is despite a
> "high powered" expert (with M.D., D.C. and Ph.D. degrees) testifying
> that his actions did not violate standard of care. However, the jury
> bought the testimony of the plaintiff's expert that the care was
> substandard.
Dear list members:
Alas, my own observational evidence points to the truth of the above. A
malpractice trial in the US involves both sides hiring "expert witnesses" who
are very well paid, each of whom testifies as to whether the care "met the
standard of care", and harmed the plaintiff. If the jury believes the
plaintiff's expert, a judgment against the physician is rendered.
Now that we have DNA evidence, we know that juries in the US have
convicted many innocent men of murder--and sentenced some to die; have found
Los Angeles police officers innocent of police brutality despite witnessing
on video a brutal beating they administered, and failed to convict a
celebrity of murder despite significant evidence he committed the crime. In
the medico-legal arena, I have seen a jury blame an FP for a woman's death
despite his referring her to a usually competent surgeon who proceeded to
first hospitalize her, then discharge her the next day despite a drop in
hematocrit of 13% overnight and an ultrasound showing a complex pelvic mass
and free fluid in the cul de sac. She died 2 days later from the shock of
continued hemorrage. It was not the surgeon who was blamed, it was the
family physician. The judgment? $4 million! Why, how? First, physicians
choose to accept lucrative payment to testify what the standard of care is.
They are not obligated to do more than give their opinion. Medical
literature is not admissible evidence. If the jury believes them, the
defendant is toast. Second, evidence is what the jury believes it is. To be
sure, most juries have little scientific or mathematical expertise, and no
training in EBM.
What is the answer and how should we adjust our EBM hats? Well, in the
USA the truth is that if a patient has a bad outcome and is not forgiving of
the doctor, a suit is likely to follow. Plaintiff's attorneys are happy to
roll the dice for a chance to win 1/3 of a 4 million dollar judgment. In
fact, I have come to believe that the evidence matters not at all in the
courtroom. It just doesn't. A skillful plaintiff's attorney backed up by a
so-called expert witness who is persuasive to the right jury can make any
bad outcome a result of malpractice. You're damned if you do, damned if you
don't--if the jury believes the opponents expert. So you might as well do
the right thing. Practice EBM. Whether you practice EBM or don't, you will
likely be sued someday. Whether you practice EBM or not will have only minor
bearing on the outcome of the suit. So practicing EBM, I am convinced,
neither increases nor decreases the risk of a malpractice suit, nor of
winning or losing one. EBM is not a medico-legal factor. So you might as
well practice EBM.
Cheers and Best Wishes,
Brian
....................................
Brian Budenholzer, MD
Director, Clinical Enhancement & Development
CC18
Group Health Northwest
PO Box 204
Spokane, WA 99210-0204
USA
[log in to unmask]
509/ 838-9100 X 7393
fax: 509/ 458-0368
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