The LitiGator
Michigan lawyers specializing in civil litigation




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Sunday, January 18, 2004

A physician wrote a recent "Piece of My Mind" article entitled "Winners and Losers" in the January 7, 2004 issue of the Journal of the American Medical Association, in which he described his experience as a defendant in a Virginia malpractice case which ended up with a $1 million verdict in favor of the plaintiff.  The operative act of alleged malpractice: the doctor's decision, after discussion and consultation with his patient in his mid-50s, not to order a PSA test to screen for possible prostate cancer.  It was found at some unspecified later time that the patient had advanced and incurable prostate cancer.  The individual physician, a third-year resident, was found to have complied with the standard of practice, but the verdict (says the article) was that "my residency was found liable for $1 million".  In other words, although the individual did act properly, the institution was found to have improperly trained its residents. 

The article has generated a lot of heat in the medical blogosphere [examples: 1 - 2 - 3], in part because the plaintiff's strategy was to place the blame on the emerging practice principle of Evidence-Based Medicine. 

"During closing arguments the plaintiff's lawyer put evidence-based medicine on trial. He threw EBM around like a dirty word and named the residency and me as believers in EBM, and our experts as the founders of EBM. He defined EBM as a cost-saving method and stated his belief that the few lives saved were not worth the money. He urged the jury to return a verdict to teach residencies not to send any more residents on the street believing in EBM."

As he notes, there is significant controversy about doing the PSA test.

"In the medical world it is well accepted that screening for prostate cancer is a risky proposition, in which there is the potential for more harm than good. Nearly all of the national guidelines—including those of the American Academy of Family Physicians, the American Urological Association, and the American Cancer Society—recommend nearly identical approaches a physician should take when it comes to prostate cancer screening. This approach is discussing with the patient the risks and benefits, providing thorough informed consent, and coming to a shared decision. Family medicine has begun to stress the shared decision-making model because of the uncertainty in the literature with regard to such practices as hormone therapy, screening mammography, and many other medical procedures. The shared decision-making model and national guidelines are both losers in this story."

One paragraph struck me:

"Four physicians testified that when they see male patients older than 50 years, they have no discussion with the patient about prostate cancer screening: they simply do the test. This was a very cogent argument, since in all likelihood more than 50% of physicians do practice this way." 

I do not know Virginia law, but in Michigan the expert witnesses would not be permitted to offer this testimony.  An expert testifying about the standard of care must phrase his answers in terms of the standard of care, not his own personal practice.  The law in Michigan recognizes that an expert who tells the jury what he would have done in a certain situation may well mislead the jury, because this testimony is calculated to suggest that the witness' practice is in fact the same as the standard of practice. 

More to the point, this episode underscores one point about the "standard of care": that standard is not based on what the majority of physicians do, but rather on what physicians in general would recognize as sound and responsible professional practice.  When there is a true controversy or difference of opinion among practitioners, a physician may theoretically choose either one when making his clinical decisions, without being found guilty of malpractice.  Further, the "respectable minority" standard posits that a course of action which is recognized and accepted as proper does comply with the standard of practice even if most physicians are doing it a different way.  It is "respectable" rather than "minority" which is important in this phrase. 

The issues of whether or not to do a screening PSA in men, or to do annual screening mammograms in women between 40-50 years old, are excellent examples of this principle.  There is no general agreement on this point.  Responsible physicians differ on these issues, and for that reason neither can be "right" or "wrong". 

(We pause for a moment for a simple explanation of why the common practice is as the four plaintiff's experts said it was, courtesy of

"The PSA conversation takes 20 minutes, but just ordering it takes about 20 seconds."

In other words, the primary motivation is the convenience and of course the enhancement of income for the doctor, not the well-being of the patient.  Hmmm.)

But note my careful use of the word "theoretically".  What happens in a litigated case depends much more on what the jury can be persuaded to accept than on the medical and scientific principles involved.  The system depends on ordinary men and women making these decisions, with the aid of arguments of counsel and expert testimony from physicians.  The human factor, including emotional issues and inter-personal relationships, is a big part of the picture.  Trying cases can sometimes be as much about showmanship as it is about science.

Those who push for an alternative system, perhaps modeled on the administrative workers compensation system, should keep in mind the deficiencies and faults of that system.  We had a taste of that truth under Michigan's former arbitration system.  When health care providers participated on arbitration panels, the rate of findings in favor of plaintiffs went up. 

If the author's recounting of the verdict and its basis is accurate, one would have to conclude that the verdict will probably not be permitted to stand on appeal.  A claim for what is essentially educational malpractice does not, in most states, state a legally-recognized cause of action.  A claim for medical malpractice has to be based on a finding that one or more health care providers acted in a manner which was inconsistent with the standard of practice with respect to a medical decision relating to treatment.  If no individual was found to have made an improper medical decision, then the institution cannot be held liable for damages.

2:59:20 PM    

Back in the BB ("before blogging") era, in March 2001 to be exact, Howard Bashman wrote an article in the Legal Intelligencer (reproduced at his law firm's site) detailing the reasons for his conclusion that recess appointments to the Federal bench would be unconstitutional.   An interesting piece of information appears therein:  A person who receives the recess appointment is prohibited under 5 U.S.C. §5503 from receiving any compensation from the Federal government for his services.  Judge Pickering, it seems, has given up a paying position as a Federal District Judge for a non-paying and of course temporary position on the Fifth Circuit bench. 

Unless he is independently wealthy, I wonder how he could do that.  Unless. . .

They wouldn't.  Would they?

1:11:35 PM    

In all of the controversy about file sharing, copyright protection, and Digital Rights Management, this is the strangest twist to date: a private RIAA "police force", swooping down on unsuspecting vendors and intimidating them with threats of arrest, complete with dark jackets with "RIAA" stenciled on the back.

"The RIAA acknowledges it all — except the notion that its staff presents itself as police. Yes, they may all be ex-P.D. Yes, they wear cop-style clothes and carry official-looking IDs. But if they leave people like Borrayo with the impression that they’re actual law enforcement, that’s a mistake."

Bullshit. They are counting on the official impression, walking a fine line just this side of impersonating police officers.

10:25:25 AM    

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