Clinician to Clinician: Malpractice crisis: If we can't beat them, join them

May 1, 2007

The cost of malpractice premiums threatens our specialty's very survival. Yet powerful interest groups impede tort reform. What if, however, physicians concede the point that tort reform is not our priority? A strategy of if we can't beat them, join them might ultimately prove the key to the enduring solutions that we seek.

Key Points

When the Government Accountability Office looked into all the variables associated with this crisis, it found that the only variable that statistically correlates with the cost of premiums is the total costs of claims to malpractice carriers.1 There are also studies that have found that a large chunk of the legal transaction costs for litigating and defending claims has the opinions of medical experts as their common denominator. They further find that erroneous opinions result in the costs of misinformed jury verdicts, damages that exceed justified awards or settlements, and the defenses of physicians who go to trial even though settlements or dismissals are more reasonable. Therefore, if we are to produce downward pressure on malpractice premiums, we must control the influence of error in expert opinions on litigation.

Algorithm would objectify expert witnesses' opinions

Being an advocate is not the job of a medical expert; in fact, organized medicine establishes objectivity as the ethical standard for expert witnesses and the scientific method as the intellectual standard for scientific inquiry. Nevertheless, some experts disregard these standards by attempting to disguiseerror as validity just to win a point.

On the other hand, if there were a standardized algorithm that determines the scientific validity ofan expert's opinion by using the scientific method-an algorithm that objectively separates valid from invalid opinions-the medical profession would be empowered to more effectively regulate itself. In fact, there is such an algorithm.

You'll find an algorithm for hypothesis testing in medical malpractice in the Journal of Legal Medicine.3 Either retaining or rejecting the null hypothesis is the essence of the scientific method. In medical malpractice, the generic null hypothesis states that, under the circum stances specific to the allegation of negligence, the risk that an adverse outcome will occur consequent to treatment is not significantly different from the background risk of its occurring due to random chance. In other words, what happened would have happened in any event.In a nutshell, the algorithm simply reiterates the scientific method. To test the null hypothesis, an expert:
1. States the hypothesis of his or her position, namely, that the treatment did or did not result in the adverse outcome.
2. States the null hypothesis, namely, the adverse outcome resulted from a random occurrence or from factors outside the influence of treatment.
3. Compares facts about the treatment in question against facts known about a parallel hypothetical safest effective treatment for the same medical condition, presenting under the same circum stances, in the same or a similar patient. This parallel treatment could not cause the adverse outcome because its risks do not impose any increase to the background risk of the adverse outcome as caused by random events.
4. Uses data obtained from this comparison to statistically test the null hypothesis and either retain it or reject it.
5. Documents in detail all the steps in the analysis and justifies all the reasoning used, including any reliance on peer-reviewed medical literature.

'Truth or consequences' for experts who deliberately mislead

Consequently, if using the scientific method to objectively validate a medical expert's opinion was a best practice for physicians when they act as expert witnesses, effective self-regulation becomes possible. Moreover, those experts who intentionally render invalid evidence to misinform a jury could be professionally sanctioned within existing peer review.

This approach would also increase pressure on regulatory practices in the tort system. The scientific method applies to medical malpractice because of the Daubert decision. The Supreme Court held that regardless of which rules lower federal courts use for the admissibility of expert testimony, for scientific evidence to be admissible, it must also be scientifically valid. Therefore, with a standardized algorithm as described above, judges would be more inclined to question the admissibility of evidence in preliminary proceedings before it's presented to a jury.