Practical advice from community ob/gyns
Professional liability is the biggest issue confronting ob/gyns, as documented by a recent survey published in Obstetrics & Gynecology.1 A significant contributor to the current crisis is the often inconsistent and unsubstantiated testimony of a small group of "professional" plaintiff experts. Because of this concern, the American College of Obstetricians and Gynecologists (ACOG) has developed a very structured and well-thought-out grievance process that is designed to sanction Fellows who provide unethical/unsupported testimony in medical liability cases. Under ACOG's Code of Professional Ethics, a Fellow can be issued a warning, censured, suspended, or expelled from the College for such behavior.
This is ACOG's major non-legislative initiative in the area of medical liability. Unfortunately, the process has been underutilized, and in my opinion, its effectiveness is unproven. I base this on the following personal experience.
A colleague of mine was hurt by allegations that he had caused the death of a baby from Group B streptococcus (GBS) sepsis because he did a "membrane sweep" to initiate cervical ripening in a patient who had proven GBS colonization. When the patient went into labor, she was appropriately treated with antibiotics. Despite this, the baby died. My friend felt terrible, but had done nothing wrong.
The educational literature from ACOG and the American Academy of Pediatrics does not indicate that patients who are GBS carriers should not have "membrane sweeps," pelvic exams, or even intercourse. Despite the lack of evidenced-based findings, a well-known expert wrote an opinion indicating that it was a deviation from the standard of care to do a "membrane sweep" in any patient who was GBS-positive. Because of this expert's written opinion, the case went to trial. Fortunately, the jury realized that the plaintiff's expert was expressing opinions that did not reflect evidenced-based medicine, and they rendered a defense verdict.
Does anyone think the defense verdict made my friend feel good? Physicians who have gone through a similar process know that despite "victory," we as doctors always feel terrible when an unexpected untoward outcome happens. We feel even worse when we are accused of practicing bad medicine that may have caused a bad outcome.
With the trial over, the defendant doctor wanted to file a grievance against the expert witness with ACOG. But he was dissuaded by lawyers at his institution, who feared a lawsuit. To my knowledge, no "suspect expert" has ever successfully sued in court, but some of them are "winning" because we in the profession are not even putting up a fight. The medical profession is just lying down and letting unethical experts walk all over us because we are afraid to put our money where our mouths (and hearts) are.
With the support of many like-minded ob/gyns, who pledged money for an escrow account in case there was a countersuit, I filed the grievance, as a member of ACOG. The Grievance Committee decided that my complaint was appropriate for review and the ACOG system seemed to be working well. But then I received correspondence from the College demonstrating that people have already figured out how to beat the system. The plaintiff's witness against whom I filed the complaint resigned from ACOG, so the College no longer has disciplinary authority in this case. If the clinician rejoins ACOG, I will be notified and I can continue my complaint.
According to many of my friends and colleagues, this is a "win." Whenever the plaintiff's witness testifies in the future, that clinician will have to explain the resignation from ACOG while a complaint was pending. To me, that is OK but not enough. I want to see us take the lead on this medical liability issue. We need to police ourselves. Behind every inappropriate allegation of malpractice there is a plaintiff's witness, one of our own, who is willing to give false testimony against his or her brethren. In such cases the allegation is unreasonable and not supported by any literature that would have given the practicing clinician a basis for altering his or her practice, or the jury a reason to conclude that the care in question was substandard.
I am not suggesting that everyone who is a plaintiff's expert is a bad person. In fact, I believe that when there really is negligence, a plaintiff's expert provides a useful service to society. The ACOG grievance process also should be used to challenge unethical defense experts. And any expertplaintiff or defensewho testifies using false information or does not meet the ethical standards of our profession should be sanctioned.
Only by using the ACOG grievance process can we as doctors change the system and promote good care and fair compensation for plaintiffs when medical liability occurs. If we are afraid to file grievances or doctors can just drop out of societies such as ACOG that have grievance processes, we will continue to lose. If that happens, we should not blame the legislature, the lawyers, or the patients. We should blame ourselves.
I hope my experience underscores the potential importance of the ACOG grievance process and gives other ob/gyns the courage to pursue justice by identifying unethical witnesses. If more people do this, we will get a real "win." In the end, all expert witnessesplaintiff and defensewill think twice before offering testimony that is unsupported by currently available literature and unacceptable to clinicians who practice the standard of care. If that happens, then we will have won.
1. Bettes BA, Strunk AL, Coleman VH, et al. Professional liability and other career pressures: impact on obstetrician-gynecologists' career satisfaction. Obstet Gynecol. 2004;103:967-973.
Arnold Cohen. My experience with ACOG's grievance process. Contemporary Ob/Gyn Sep. 1, 2004;49:39-41.