Malpractice: A different kind of tort reform

August 5, 2005

This internist uses evidence-based medicine to help lawyers handle malpractice cases.

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."

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."