Wednesday, March 28, 2012

H.R. 5 - The Protecting Access to Healthcare (PATH) Act - The Health Care Industry's Latest Attempt to Avoid the Financial Consequences of Epidemic Levels of Malpractice.

On Thursday, March 22, 2012, the House of Representatives passed H.R. 5, the Protecting Access to Healthcare (PATH) Act, a bill originally introduced by Representative Phil Gingrey (R-GA), which if passed into law will cap all pain and suffering awards in medical malpractice cases at $250,000. H.R. 5 also reduces the amount of attorneys fees that can be paid to a lawyer who represents a victim of malpractice. Of course, defendant health care providers still have a right to pay lawyers they employ to defend these cases any amount they wish.  The bill also seeks to impose draconian restrictions on patients' rights of redress against drug companies and medical products manufacturers who profit off of dangerous or misleading products in the marketplace.

The rationale for the proposed medical malpractice restrictions according to the sponsors of the bill is that jury trials in medical malpractice cases are "a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients."  Additionally, the authors of the Bill contend that the threat of a lawsuit "is a deterrent to the sharing of information among healthcare professionals which impedes efforts to improve patient safety and the quality of care."  Among the stated goals of H.R. 5 is to "reduce the incidence of defensive medicine and lower the cost of health care liability insurance."

It is impossible to argue that a one-size-fits-all pain and suffering award of $250,000 is a just way to make a victim of medical malpractice whole after he suffers tragic debilitating injuries. Under the circumstances, Representative Gingrey (a retired obstetrician who has been sued for malpractice three times) has taken a page out of Orwell's 1984,  and H.R. 5 is drafted as if came straight from the Ministry of Truth.  The bill is said to be designed "to ensure that persons with meritorious health care injury claims receive fair and adequate compensation." In actuality, H.R. 5 takes away a medical malpractice victim's ability to have a jury of his peers decide what a fair measure of compensation is.  Representative Gingrey contends that H.R. 5 will benefit victims of medical malpractice "by reducing uncertainty in the amount of compensation provided to injured individuals."  The only time that the $250,000 cap on damages will result in certainty, however, is when it limits a jury award that would have otherwise been higher. Somewhat ironically, the New York Times recently reported that the $250,000 cap is half of what Representative Gingrey settled his last medical malpractice litigation for, after he was accused of providing negligent care to a pregnant woman. 

Tort reform advocates have been attempting to shift the burden of medical mistakes from the health care industry to victims of negligence for years.  The argument is cloaked in self-righteousness: Victims' rights have to be curbed, and after this occurs, physicians will no longer be afraid to disclose errors. This will cause a change in the culture of medicine and allow medical errors to be analyzed and approached in a new more comprehensive way.  Unfortunately, medical literature published by doctors (not lawyers) and the recent history of the patient safety movement provide plenty of reasons to be skeptical of this trickle-down approach to safety. 

H.R. 5 will drastically restrict innocent victims' rights of redress in medical malpractice cases, while rewarding the health care profession with immunity for its failure to police itself. This is not only incredibly irrational from a public policy standpoint, it is also immoral because for the last ten years, an epidemic medical malpractice problem in the United States has resulted in hundreds of thousands of unnecessary deaths, and despite this, advances in patient safety have stalled and error rates have held steady.

In November 1999, the Institute of Medicine,  a branch of the National Academy of Sciences, published a study declaring that a threshold improvement in the quality of health care was urgently needed because medical negligence committed in hospitals in the United States was killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, et al, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999). The impact of that study, and its "jarring" analogy that the annual number of deaths from hospital negligence would be equal to the downing of a jumbo jet every single day, "galvanized the public and health professionals and led to congressional hearings, media exposes, and millions of anxious patients." Robert M. Wachter, M.D. , The End of the Beginning: Patient Safety Five Years After 'To Err Is Human," W4 Health Aff (Millwood) Web Exclusives 534 (2004).
Twelve years ago, To Err Is Human announced that the health care industry was "a decade or more behind other high-risk industries in its attention to ensuring basic safety." To Err Is Human, supra, at 5. The report was so shocking in part because "silence surrounds" the issue of medical malpractice. Id. The goal of To Err Is Human was noble: to break the cycle of inaction in the health care industry. Id. at 3. Action was urged 10 years ago because doctors (not lawyers) finally declared that the status quo was not acceptable and could no longer be tolerated. To Err is Human argued that preventable errors could be reduced by designing safety into the health care delivery system. Id. To do that, a four tiered approach was advocated. The health care industry needed to

  • undertake a national effort to create leadership, research, tools and protocols in the to enhance the knowledge base about safety;
  •  identify and learn from errors through immediate and strong mandatory reporting efforts, and voluntary reporting efforts, with the aim of making sure the system is made safer for patients;
  • raise the standards and expectations for improvements in safety through the actions of oversight organizations, group purchasers, and professional groups; and
  • create safety systems inside health care organizations through the implementation of safe practices at the delivery level. Id. at 6.
In To Err Is Human, the IOM called for a 50% reduction in medical errors in five years, but ten years later it was clear that progress in the area of patient safety was still far short of that goal. Lucian Leape, et al., Transforming Healthcare, a Safety Imperative, 18 Qual. Saf. Health Care 424 (2009). Indeed, one commentator observed that "[s]hockingly modest progress has been made given the impact of the problem, how many people were made aware of it and how many efforts have been made to address it."  Howard Larkin, 10 Years, 5 Voices, I Challenge. To Err Is Human Jump-Started a Movement to Improve Patient Safety. How Far Have We Come? Where Do We Go From Here? 83 Hosp. Health Netw.  24a, 28t (2009). ''The current status of hospital safety systems is not close to meeting IOM recommendations." Daniel R. Longo, OblSb, SeD, The Long Road to Patient Safety: A Status Report on Patient Safety Systems 294 JAMA 2858, 2858 (2005).  Data from recent studies measuring safety progress suggests that "patient safety progress is slow, and cause for great concern." ld.

On Nov. 18, 2010, the New England Journal of Medicine published a study that attempted to quantify the impact of patient safety measures on in-patient hospital admissions. Christopher P. Landrigan, M.D. et al., Temporal Trends in Rates of Patient Harm Resulting from Medical Care, 363 New Eng. 1. Med. 2124 (2010). The authors specifically chose to evaluate the impact of patient safety efforts in North Carolina because that state showed a high level of engagement in efforts to improve patient safety. In spite of this, the study revealed that ''harm resulting from medical care was common, with little evidence that the rate of harm had decreased substantially over a 6-year period ending in December 2007." ld. at 2130. The review revealed that 25.1% of the patients receiving medical care in the hospitals surveyed suffered from medically induced harm. Id. at 2124-2125. Sixty-three percent of these medical mistakes were entirely preventable. ld. at 21. More recently, in April 2011, a study appearing in Health Affairs suggested that medical errors occurring in hospitals are ten times more common than previously thought.
It is difficult to imagine the lack of results in the last twelve years in the patient safety movement being permitted to occur in any other industry. If ten years ago jumbo jets were falling from the sky every day and we learned from a study (conducted by the airline industry itself) that the resulting individual tragedies were avoidable if air carriers implemented policies and procedures in a systematic way to promote safe practices, citizens would demand change and there would be bipartisan support for government intervention to stop preventable deaths. The idea that thousands of deaths already occurred because of air carriers' failure to follow safety standards would be considered utterly scandalous. You certainly would not expect people to stand idly by while the planes continued to full from the sky every day for ten more years. If the planes did keep falling, nobody would dream of suggesting that we should reduce airline accountability to the victims who were dying because of preventable errors.

Given the last twelve-year history of the patient safety movement, it is irrational to suggest that providing more immunity to the health care industry will result in "an increased sharing of information in the health care system which will reduce unintended injury and improve patient care."

Advocates of tort reform hypothesize that the one of the reasons that medical malpractice is such a pervasive problem is that the health care industry is unable to examine errors in a systematic way because doctors are afraid to admit when they make mistakes for fear of being named as a defendant in a lawsuit.  The theory is that if the financial consequences of medical mistakes are reduced, doctors will be more honest about admitting them, and this will lead to more data about errors, which will be analyzed and evaluated. Then, a "systems approach" will result in a safer health care sector.

The unsupported optimism that immunity will eventually result in a more honest approach to medical mistakes completely ignores the fact that physicians have always been required to be honest about medical mistakes, but have historically refused to act this way. Under the American Medical Association Code of Ethics, physicians have an ethical obligation to advise a patient when they commit consequential acts of medical malpractice when "a patient suffers significant medical complications that may have resulted from the physician's mistake or judgment." Am. Med. Ass'n Code of Medical Ethics A-02 Edition, E-8.12 Patient Information, 77. Similarly, the American College of Physicians Ethics Manual mandates disclosure of errors if disclosure of this information is "material to the patient's well-being." Lois Snyder & Cathy Leffler, Ethics Manual, Fifth Edition, 142 Annals Internal Medicine 560, 563. Finally, the Joint Commissions on Accreditation of Health Care Organizations requires that patients be informed of unanticipated results that differ from the expected outcome in a significant way when a medical error occurs at a hospital. Joint Comm'n on Accreditation of Health Care Orgs., Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction 12 (2001).
Disclosure of medical errors is not only ethically mandated, literature supports that it is consistent with the fiduciary nature of the physician-patient relationship, since in most instances, disclosure of errors will benefit a patient. C.J. Wusthoff, Medical Mistakes and Disclosure: The Role of the Medical Student, 286(9) JAMA 1080, 1081 (2001). Disclosure helps gain the cooperation of a patient who has been harmed by an error. Id. Further, understanding the cause of unexpected problems can relieve anxiety about recovery or complications. Id. Finally, some commentators have suggested that since patients need information about errors to make decisions about their medical care, disclosure of malpractice is part of a physician's duty to provide a patient with informed consent. Thomas H. Gallagher, Wendy Levinson, Disclosing Medical Errors to Patients: a Status Report in 2007, 177(3) Canadian Medical Association Journal 265 (2007).

In theory, physicians agree that they have an ethical obligation to disclose medical errors. One study suggests that between 70 and 90% of the physician population believes that doctors should disclose errors to patients. Kathleen M. Mazor et al., Communicating with Patients about Medical Errors, 164 Archives of Internal Medicine 1690, 1692 (2004). In another study, 97% of the faculty and resident population surveyed indicated that they would disclose medical errors that caused minor harm, and 93% indicated that they would disclose an error causing major harm. Lauris Kaldjian , et al. Disclosing Medical Errors to Patients: Attitudes and Practices of Physicians and Trainees, 22(7) J Gen Intern Med 988-96 (2007).
Regrettably, while physicians are ethically obligated to inform their patients of consequential medical malpractice and studies suggest they intellectually support this principle, theory has not translated into practice. A study revealed that only 24% of residents surveyed reported the medical errors they committed to their patients. Albert Wu, et al. Do House Officers Learn From Their Mistakes? 12 Quality & Safety Health Care 221, 224 (2003). Another study estimated that nationwide, physicians are only disclosing errors to patients about 1/3 of the time. Robert J. Blendon et al., Views of Practicing Physicians and the Public on Medical Errors, 347 New. Eng. J. Med. 1933, 1935 (2002).

Doctors have always been ethically required to disclose medical errors, partially because it is a means to ensure good care.  That has not happened though.  Moreover, since To Err Is Human was published twelve years ago, saving 1.2 million lives was not enough incentive to cause error reporting systems to develop and preventable errors to be analyzed.  Under the circumstances, it absurd to suggest that (a) error reporting will increase and (b) a safer health care system will evolve once the impact of limiting malpractice victims' right of redress trickles down through the health care system. 

 Attempts to justify restricting the rights of medical malpractice victims as a means to decrease the cost of "defensive medicine" are misplaced because (a) the health care industry vastly exaggerates the problem of defensive medicine,  (b) other factors have increased physicians' propensity to order more diagnostic studies and make additional medical referrals, and (c) studies have repeatedly shown that capping medical malpractice damages does not impact how doctors practice medicine. 

Those who advocate tort reform often point to the problem of defensive medicine as a justification to limit the right of redress of victims of medical malpractice. The argument is that the “pervasiveness of malpractice litigation" causes health care providers to “order tests or procedures in excess of their actual need to protect themselves from the risk of lawsuits.” Tara F. Bishop, MD, Alex D. Federman, MD, MPH & Salomeh Keyhani, MD, MPH, Physicians’ Views on Defensive Medicine: A National Survey, 170 Arch Intern. Med. 1081 (2010). Accordingly, malpractice litigation is seen as creating a problem of over-deterrence, with lawsuits causing doctors to take more precautions than they otherwise should when they treat their patients.
Doctors  certainly think  the  threat  of malpractice causes  them  to be excessively cautious. Studies  surveying doctors for the  last 30 years  reveal  that  anywhere between 21%  to 98% admit  engaging in  defensive medicine. J. William Thomas  et al., Low Costs of Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578-1584  (2010).  Nevertheless, it is hard  to reconcile physicians’ perception that  they  are  acting  in  an  overly  cautious manner with  reality.  Although the last few  years have  seen an  escalation in the  discussion about  the  costs  of defensive medicine, over-cautious behavior is not  evident in outcomes because medical  error rates have held  steady. Christopher P. Landrigan,  M.D.  et  aI., Temporal  Trends in Rates of Patient Harm Resulting from  Medical  Care,  363 New Eng. J.Med. 2124 (2010).

Bias is one culprit here, as some commentators have pointed out: “Because many physicians are attuned to defensive medicine as a problem, and their professional organizations agitate prominently  against it,” studies that attempt to quantify the scope of the problem of defensive medicine by  surveying physicians are prone to a “socially-desirable response bias.” David M. Studdert, LLB, SeD, MPH, et al., Defensive Medicine and Tort Reform: A Wide View, 25 J. Gen. Intern. Med. 380 (2010).
In addition to the problem of bias, surveying doctors to attempt to determine whether the threat of a medical malpractice lawsuit causes over-utilization has other inherent defects. First, there are many other causes for profligate testing in medicine, including: 1) the public culture of entitlement; 2) the expectation of immediate and perfect results; 3) the extraordinary increase in diagnostic and treatment options today; and 4) growing specialization and fragmentation of care. Marcel Frenkel, M.D., M.B.A., Consensual Medicine and the Therapeutic Partnership: Reducing the Costs of Defensive Medicine and Litigation, 25 J. Med. Prac. Mgmt. 78 (2009). Additionally, managed care contributes to over-ordering because it requires faster analysis and decisive conclusions. Id.

Studies that have attempted to quantify the costs of defensive medicine by looking at the impact that tort reform has had on health care savings have obtained inconsistent results. For example, while some studies have found lower health care costs in states with tort reform, others noted a weak relationship between tort reform and health care savings. Still other studies found no relationship at all. J. William Thomas  et al., Low Costs of Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578, 1579 (2010). These varied results have been attributed to the fact that researchers invariably focus on limited sets of clinical conditions or specialties. Id. at 1579.
In 2009, a broader and more comprehensive study was undertaken to ascertain the impact of tort  reform measures on health care costs by examining Medicare spending in states that adopted tort reform. Frank A. Sloan & John H. Shadle, Is There Empirical Evidence for ‘Defensive Medicine’? A Reassessment. 28 J. Health. Econ. 481 (2009). The study concluded that its analysis, and those of previous studies, suggested that contrary to statements in the media, caps on damages and the abolition of punitive damages did not have a significant impact on the reduction of payments for the studied Medicare services. The researchers’ overall conclusion was that “tort reforms do not significantly affect medical decisions, nor do they have a systematic effect on patient outcomes.” Notably, these results meshed with the Congressional Budget Office’s estimate that if tort reform were enacted in the form of a $250,000 cap on noneconomic damages, a $500,000 cap on punitive damages and a decrease in statute of limitations, the savings from a combination of: 1) decreased use of services from less defensive medicine; and 2) lower malpractice insurance premiums would be merely .5% of the annual national expenditure of health care. Cong. Budget Office, Letter to Honorable Orrin G. Hatch, U.S. Senate, Oct. 9, 2009, available at

Finally, at face value, the defensive medicine argument is premised on an outdated and paternalistic view of the physician/patient relationship that is contrary to law. In most circumstances, the law  compels physicians to empower their patients to make consequential medical decisions by requiring a doctor to provide a patient with informed consent. Simply put, it is a mistake to assume that reduced exposure to liability will allow doctors to be less cautious, because doctors are no longer the only decision makers in this process.

By capping recovery, H.R. 5 will inadequately and arbitrarily compensate victims of severe incidents of medical malpractice and simultaneously make smaller medical malpractice cases economically impossible to pursue. This later problem will have a disparate impact on the poor and elderly. 

It goes without saying that an arbitrary cap on non-economic loss damages will negatively impact victims of medical negligence injured the worst. In addition to this, damages will make cases for many victims injured less severely by medical malpractice financially unviable.  RRMedical malpractice case usually require a plaintiff's attorney to "front" expenses.  Even the most simple cases  this amounts to at least $25-$30,000. The costs are significantly more if the case goes to trial.  More importantly, these cases also almost always require a malpractice victim's attorney to invest hundreds of thousands of dollars in attorney time to prosecute, because they deal with complex issues of science, require extensive discovery and significant preparation during every stage of the litigation process and they are always vigorously defended. Assuming a contingency fee of 33%, a case usually has to have a potential financial recovery of over several hundred thousand dollars for an attorney to consider it financially viable to pursue. Therefore, if damages in these cases are capped at $250,000, unless a patient suffers a significant future loss of income as a result of a medical mistake,  the overwhelming majority of medical malpractice cases will no longer be financially viable for attorneys to prosecute.  Make no mistake about it, capping malpractice damages in the face of a permanent life-altering injury at $250,000 will hurt nearly every medical malpractice victim. Nevertheless, since a significant future wage loss will become the new polestar of whether a malpractice case is financially viable,  H.R. 5 Hwill disparately impact the elderly, who do not have a lengthily work life expectancy, and the poor, who will not show a dramatic future wage loss.

Juries sit on cases every day in the United States and determine whether accountants, attorneys, architects and engineers commit professional malpractice. Indeed, we rely on our citizens to determine whether some criminals should be sentenced to death. H.R. 5  assumes that juries are incapable of deciding the appropriate measure of compensation for people who have been injured by a health care provider's negligence.  Notably, H.R. 5 does not posit that people are ill-equipped to deal with complex medical issues, and it does not suggest that a jury cannot determine whether a medical provider made a mistake, it simply assumes people aren't smart enough to calculate what amount of damages should be awarded to patients injured in these circumstances. The fact is that juries make this identical determination in virtually every significant civil case that is decided by the courts, and no cogent explanation has ever been offered about why juries are uniquely incapable of making these kinds of calculations in medical malpractice trials.

Like every other business industry, the health care industry is influenced by a profit motive. Promoting safety is time consuming and expensive. Historically, lawsuits have actually helped advance safety measures in industries reluctant to take such initiatives on their own. In the face of a medical malpractice problem that by its own admission has reached epidemic proportions, the health care industry failed to take significant measures for the last twelve years to stop hundreds of thousands of deaths. A reasonable analysis leads to the conclusion that H.R. 5 will only exacerbate these problems.           

Tuesday, March 20, 2012

Shoulder Dystocia and the Duty of Informed Consent

This is from an article I published in Medical Malpractice  Law and Strategy Vol. 29, Number 6, March 1, 2012

Shoulder dystocia is a birth complicated by a failure to deliver the fetal shoulders through gentle downward traction on the fetal head. It poses an obstetric emergency, and is associated with brachial plexus injuries, fractures of the clavicle and humerus, and in some severe cases, hypoxic-ischemic encephalopathy and even death.

Shoulder dystocia can occur when there is impaction of either: 1) the anterior fetal shoulder behind the maternal pubis symphysis; or 2) the posterior fetal shoulder on the sacral promontory. Fetal macrosomia (a.k.a. "big baby syndrome") and maternal diabetes increase the risk of encountering shoulder dystocia during a delivery. In addition, other antepartum conditions can also forecast that a delivery is at an increased risk for shoulder dystocia, including maternal obesity, multiparity, post-term gestation, previous history of a macrosomic birth and a previous history of shoulder dystocia.

With this array of possible indicators for shoulder dystocia, when must the physician bring the possibility of this complication to the patient’s attention in order to obtain informed consent for or against induced labor or cesarean section?

ACOG Guidance Insufficient

The American Congress of Obstetricians and Gynecologists (ACOG) offers some guidance concerning the duty of the physician to obtain informed consent from a patient at risk of a delivery completed by shoulder dystocia. ACOG takes the position that "planned cesarean delivery to prevent shoulder dystocia may be considered for fetal macrosomia with estimated fetal weights exceeding 5000 grams in women without diabetes [11 lb .36 oz] and 4,500 grams [9lb 14.73 oz] in women with diabetes." Robert J. Sokol et al., ACOG Practice Bull. No. 40: Shoulder Dystocia, Compendium of Selected Publications, 682-687 (2002) (replaces Practice Pattern No. 7, Oct. 1997). Id. at 684. ACOG’s position about when it is appropriate for a physician to consider offering an expectant mother the option of a cesarean section when there is a diagnosis of fetal macrosomia seems overly rigid. First, ACOG concedes that ultrasonogaphy is not always an accurate predictor of macrosomia. Id. at 683. Second, while ACOG has suggested that a baseline level weight should be used to trigger when it is acceptable to consider a cesarean section due to a suspicion of macrosomia, the organization simultaneously recommends that when a mother has a prior history of encountering shoulder dystocia during labor and delivery, several factors need to be taken into consideration when discussing the risks and benefits of an elective cesarean section with the patient, including estimated fetal weight, gestational age, maternal glucose intolerance and the severity of the prior neonatal injury.

Issues of logical consistency aside, it would be a mistake to conclude that ACOG Practice Bulletin No. 40 sets forth the standard of care regarding when it is appropriate to discuss a planned cesarean section with an expectant mother in the face of evidence suggesting an increased risk of encountering shoulder dystocia during a delivery. A physician’s duty of informed consent is governed by state law, and different states have different legal requirements about how this obligation must be fulfilled. Moreover, common law and statutory law governing a physician’s duty of informed consent can evolve and change.

Consider State Law

State law is not uniform regarding what a physician must do to meet his or her obligation of informed consent. First, some states hold that a doctor’s duty of informed consent involves only disclosure of risks that are customarily disclosed by physicians. Laurent B. Frantz, Annotation, Modern Status of Views as to General Measure of Physician’s Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R. 3d 1008 (1978). Arkansas is a state that follows this approach. It has a statute that requires a plaintiff alleging a breach of a duty of informed consent to prove that the information the doctor failed to provide "would customarily have been given to a patient" in the plaintiff’s circumstances "by other medical care providers with similar training and experience" and "in the locality in which the medical care provider practices or in a similar locality." A.C.A. § 16-114-206.

Other states take the position that a substantial risk must be disclosed to a patient in order for a physician to meet his duty of informed consent, unless the physician can demonstrate that there is either a local or a national standard that suggests that nondisclosure is appropriate. This second standard was used by the Colorado Court of Appeals in Stauffer v. Karabin, 492 P2d 862, 865 (Colo. App. 1971).

A third view is that a doctor’s duty of informed consent is measured by what a reasonable physician would disclose in similar circumstances. This is the approach the Supreme Court of Kansas took in Natanson v. Kline, 350 P.2d 1093, 1106 (1960).

The first three views regarding a doctor’s duty of informed consent have been characterized as the "traditional" or the "professional" standard formulation of a doctor’s duty of informed consent. D. Louisell and H. Williams, Medical Malpractice § 22.08 at 22-23 (1987). The "professional" standard "rests on the belief that a physician, and only a physician can effectively estimate both the psychological and physical consequences the risk inherent in a medical procedure might produce [in] a patient." Largey v. Rothman, 110 N.J. 204, 210 (1988).

In 1972, a new standard of disclosure for informed consent was established by the United States Court of Appeals for the District of Columbia Circuit in the case of Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.), cert. den., 409 U.S. 1064 (1972). Under this fourth view of informed consent, the scope of the information a physician is required to disclose is measured by "the patient’s need for information material to his decision whether to accept or reject a course the proposed treatment." This fourth standard of informed consent is known as the "prudent patient" or "materiality of risk" standard. Under this view, for a physician to meet his duty of informed consent, he must disclose all information that is material to a patient’s decision. Canterbury, supra, at 786-787. A risk is material "when a reasonable patient, in what the physician knows or should know to be the patient’s position, would be ‘likely to attach significance to the risk or cluster of risks’ in deciding whether to forego the proposed therapy or to submit to it." Largey, supra, at 211-212 (quoting Canterbury, supra, at 787).


In those jurisdictions adapting the "traditional" or "professional" standard formulation of the duty of informed consent, ACOG Practice Bulletin No. 40 could certainly influence an analysis of the amount of information and options a physician is required to offer to an expectant mother when there is antepartum evidence suggesting an increased risk of shoulder dystocia. Nevertheless, jurisdictions that have adopted the more modern "prudent patient" or "materiality of risk" standard of informed consent reject the notion that a physician’s obligation to provide information is limited to what is disclosed under the customs and practices of the medical profession. Consequently, it would be prudent for obstetricians to look beyond ACOG Practice Bulletin No. 40 and examine their states’ legal requirements regarding the duty of informed consent when making office policy decisions about when to speak to patients about planned cesarean delivery in the face of antepartum evidence suggesting an increased risk of shoulder dystocia during delivery.

Saturday, March 3, 2012

Keeping Experts Honest in Medical Malpractice Cases

In every medical malpractice case that goes to trial, one set of experts conducted an unethical analysis.

In every medical malpractice case that goes to trial, there are two sets of experts who look at the same set of facts and reach entirely different conclusions. This is because experts on one side of the case have undertaken an intellectually dishonest evaluation.
Medical experts are bound by a code of ethics when they review a case on behalf of a litigant. At their core, ethical requirements related to expert testimony almost universally require that experts conduct (a) a comprehensive analysis of the facts, (b) an objective analysis of the facts and (c) a review in accord with accepted principles of science.

If an expert is taking a position that is wrong, he is usually either (a) misrepresenting the facts of the case by ignoring, minimizing or overemphasizing evidence, or (b) misrepresenting the medicine by advocating medical science that is against the consensus of opinion. Medical experts do not usually misrepresent the science in a case. There are many reasons why. First, the majority of experts are not intellectually dishonest. Second, the prevailing consensus about an issue of medical science is usually set forth in writing either in published articles, textbooks or clinical practice guidelines. From a purely strategic point of view, it is not a good idea to for a medical expert to defend a litigation by taking a position that is contradicted by published documents which are relied on by colleagues to make medical treatment decisions. Third, if expert physicians are intellectually dishonest, over time they create a paper trail that sooner or later turns them into a liability, and lawyers stop using them.

In every deposition of every expert, confirm the ethical rules that applied to his analysis.

Establishing the ethical requirements of a fair expert evaluation during the deposition of an adversary's expert provides you with powerful proofs to use at the time of trial. If the expert conducted a bias factual review, you will be able to use the expert's testimony about what is required for a fair evaluation against him.

To exploit an expert's credibility problem stemming from a faulty factual analysis at trial, you must establish in a deposition exactly what he reviewed prior to forming the opinions set forth in his report, and what facts the expert considered important to his analysis.
Make sure that you establish unequivocally at the outset of a deposition everything which was reviewed by an expert prior to the formation of the opinions set forth in his report. This is a prerequisite to exposing credibility problems at trial because until you establish this baseline information, you will not be able to demonstrate that the expert ignored, minimized or overemphasized evidence.

Establish that the expert did not intentionally leave materials off of his list because the materials were either (a) harmful to the litigation posture of the party who retained him or (b) helpful to the other side. Confirm that the expert did not do either (a) or (b), because this would be violating the rules governing how he should behave as an expert.

Expert reports always contain a factual chronology. Establish at the expert's deposition that when the expert prepares reports in other cases, he sets forth factual chronologies in those reports as well, and this process is not unique to your case. Confirm that the expert tried to be accurate when listing thefacts in the chronology in his report, and he tries to be accurate in other cases when he does this.
Confirm with the expert that the facts set forth in his chronology are facts which he believed were important. An expert will often resist committing to this position because he recognizes that you are attempting to wed him to his factual analysis, and he is aware it is not objective. You can get usually get an expert to stop resisting the idea that he listed important facts in his chronology by attempting to establish the converse conclusion. Ask the expert whether the facts listed in the chronology of his report were unimportant. Ask the expert whether the facts in the report were selected in an arbitrary fashion. Ask the expert to identify those facts in the chronology that he thinks are unimportant to his analysis. Ask the expert to identify important facts he reviewed that are not in his chronology.

Once you have confirmed the ethical rules that applied to an expert's analysis, you can then expose at the time of trial that the expert either (a) misrepresented the facts of the case by ignoring, minimizing or overemphasizing evidence, or (b) misrepresenting the medicine by advocating medical science that is against the consensus of opinion, and you can end your cross examination by getting the expert to admit that when he did this, he breached the ethical rules applicable to his analysis.

Here are links to the ethical requirements pertaining to expert testimony of the major medical societies: