Tort reform of another kind: The medicolegal system takes the word of expert opinion over evidence

“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.’”

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  • Curious JD

    That information is certainly admissible, albeit maybe not through his testimony. The physician is remembering incorrectly.

    However, this was his central point, not what Kevin highlighted:

    “If the use of evidence-based testimony results in fewer cases going to court, less money would be wasted, and malpractice insurance rates might go down. Instead of talking endlessly about caps on pain and suffering, simply acknowledging and using evidence-based medicine could lead to real tort reform now. “

    But reform isn’t really Kevin’s goal.

  • Anonymous


    I just don’t know if anything reasonable and rational and honest can get through to CJD. He’s twisting the most basic, fundamental, simple, straightforward facts, simply to further his jaundiced propaganda. It’s honestly very upsetting.


    Doctors want EBM to be widely used in court. That only makes sense, because that’s what they are expected to use in hospital/clinic.

    But plaintiff liayers are busy bullshitting their way in court, practising extraordinary deception, even claiming EBM is a “cost-saving tool.” (see Merenstein case for example). That’s an insult not just to the doctors, but to all of science. It’s also unimaginably unfair, because doctors are expected to practice scientifically and are held to that standard by their professional bodies and peers, but of course, this simply is not acceptable for the plaintiff. A plaintiff can simply waltz in and say “I don’t care for all your science. Science is just a “cost-saving tool”. You should have done XYZ, and you didn’t despite my demanding it, so I’ll just **** you up the **** now, thank you very much.” (Again, see Merenstein).

    The article is about a doctor who’s founded a company to help attorneys to just get a clue, and start basing their lawsuits on some smattering of science and evidence. (No surprise that plaintiff attorneys have stood to benefit the most).

    Who on earth do you think is standing in the way of EB testimony at the moment? The overwhelming majority are plaintiffs. They are the ones bringing the suit, and they want their hired guns to say whatever the hell suits their claims. Malpractice lawsuits are plaintiff generated; if attention to (the threat of) EB testimony is going to reduce lawsuits taken to court, by definition it will have to do so by discouraging the side that brings them.

    God. What a turnip.

  • Anonymous

    Anon 8:37,

    Save your breath my friend. CJD has no credibility here and just enjoys trolling this blog. Too bad we don’t have an ignore option here. The best way to deal with trolls is just to ignore them.

  • Anonymous

    I beg to differ. I enjoy CJD as he provides insight to the other sides of the debate. You could learn if you choose NOT to ignore him. Has anyone heard of collaborative law? It may solve some problems, or you could choose to ignore progress, also.

  • Orac

    The first “anonymous” is right, though. Doctors really do want evidence-based medicine to be used widely in court. That’s the last thing in the world plaintiff’s lawyers want, because right now they can always find some dubious “expert” or other to testify whatever will support their case, leading to the frequent situation where it’s just a question of whose expert witnesses are more credible to the jury. If that “expert” had to offer more than just his “professional opinion” (such as backing up his opinion with actual studies)? It would be a wonderful thing.

  • Anonymous

    Considering physicians can’t even agree on a definition of EBM, I find it hard to buy your claims that the majority of you want it. Besides, if you did, why not simply promulgate guidelines, teach them in schools, have your medical boards adopt them as a course of conduct?

    So are all these people plaintiff’s lawyers?

    – Tara Powers, Director of
    Development for the Epilepsy Foundation of New York City, who added, “People living with epilepsy must have access to the broadest range of treatment options available in order to attain seizure control and improved quality of life. We urge policymakers to move beyond the Evidence Based Medicine (EBM) model and to incorporate the entire spectrum of evidence when considering which treatments to make available to Medicaid patients.

    From the Minnesota Medical Association: “In the light of this controversy, the MMA must make its position perfectly clear. We do not support mandates that physicians follow evidence-based medical guidelines. We do not support penalties for physicians who fail to follow guidelines. We do not support “the state dictating medical care.”

    So in other words, some of you want to claim protection for using it, unless you choose not to use it, in which case it doesn’t constitute the standard of care.

    What’s amazing is that some of you WANT EBM. Based on a couple of cases, you’ve somehow managed to claim that all lawyers who represent malpractice victims are in opposition to this. It would seem your ability to make conclusions based on the evidence is suspect.

    Also, I would encourage Orac to go to a court and watch an expert whose opinion goes against the accepted literature get cross examined. He might find that it’s not so easy to hop up on the stand and opine as he thinks. What’s more, the actual statistics show that 75% of the time, the jury finds for the defendant anyway.

  • Elliott

    As much as I respect Orac, he’s all wet about what he thinks he knows about plaintiff’s lawyers. The most likely outcome of an initial consultation with a successful lawyer is a recommendation NOT to sue. To me, they often seem like rabbis counseling conversion (you must be warned three times against this course of action). They will probe the cause of action, they will probe the damages, they will probe the willingness for the plaintiff to follow through, and they will mention time and cost.

    Maybe we need the Hitler zombie equivalent for the unsubstantiated notion that lawyers are resisting EBM. It’s the medical profession that is most against EBM both passively (through simply not paying attention) and actively (through opposing outcomes based reforms like p4p). Please don’t raise the single anecdotal case of the missing PSA because we’ve hashed that to death and a single case proves nothing.

  • Anonymous

    “Please don’t raise the single anecdotal case of the missing PSA because we’ve hashed that to death and a single case proves nothing.”

    IOW, ignore evidence that flies in the face of your argument and only focus on pro-trial lawyer stuff. Are you taking lessons form CJD?

  • Elliott

    No. You are ignoring the evidence.

    1. A article was published in the April JAMA of the same year that refuted the initial 1st person account. The authors interviewed the judge and several jurors.

    2. As I have debated, the evidence on PSA is ambiguous. Even then, the recommendation is against general population screening. It is mainly based on the cost trade-off. Have you read the USPTF recommendation.

    3. Even the USPTF doesn’t suggest targetted screening is unwarranted. We have no idea what other risk factors there might have been.

    4. Once the case was in trial, the lawyer chooses a strategy to optimize their chances of success. That proves nothing about that particular lawyers opinion about EBM a priori.

    5. Even with all the problems above, you still want to generalize a single one-sided anecdotal account by the sued physician (who incidentally was exonerated and paid nothign) to the entire legal profession.

    God, what a turnip you are.

  • Anonymous

    “who incidentally was exonerated and paid nothign) to the entire legal profession.”

    You obviously haven’t had to work alongside a physician during or after a lawsuit. I know this will offend some people, but it’s like being around somebody after they’ve been violently assaulted. There’s a form of PTSD. Sued physicians grind to a halt; they can’t practice medicine anymore, they no longer trust the patients they are seeing. In my field (emergency medicine) once you’ve been sued you can’t discharge anyone from the emergency department without a Cat Scan or an AMA form.

  • Anonymous

    My goodness you’re some delicate flowers. Does medical school teach you that you are to be immune from all criticism/questioning?

  • Anonymous

    If the court does not go by EBM then how can the court possibly claim that doctors can only be found guilty of malpractice if they violate a “standard” of care?

    Standard of care = evidence based medicine.

    One person does not set a standard. One expert witness does not set a standard. The medical community at large sets a standard and that standard is EBM.

    Here’s a great example of how the courts/lawyers ignore “standard of care” and EBM to suit their own cause.

    John Edwards made a killing by sueing ob/gyns for cerebral palsy. His claim was that cerebral palsy is caused by improper delivery procedures (i.e. use of forceps, failure to do c-section based on fetal heart rate monitors, etc).

    The ACOG (American College of Obstetrics/Gynecology) looked at CP studies in detail. They looked at all the available evidence and concluded that the vast majority of CP has nothing to do with labor/delivery procedures. They furthermore concluded taht most CP cases occur early in pregnancy.

    Now certainly that constitutes a standard of care regarding CP cases. This is the ACOG, the EXPERT BODY of ob/gyn medicine.

    Surely the lawyers paid heed right? You would expect that CP lawsuits would drop because of this new standard of care that was developed.

    But of course thats not what happened. CP cases actually INCREASED SLIGHTLY after the ACOG came out with its report. As usual, hired gun experts will say whatever they get paid to say in court.

  • Anonymous

    So did the medmal defense lawyers not put on evidence of ACOG’s position and conclusions?

  • Anonymous

    “Standard of care = evidence based medicine.”

    So can you direct me to where I can find that the state medical boards have all adopted these standards?

    That’s a great story about ACOG. And it illustrates yet again how poor your analytical abilities are. ACOG concluded the “vast majority” of CP cases aren’t caused by malpractice. OK. So how many CP malpractice suits are won v. how many cases of CP are there?

    If you haven’t seen the evidence in any of Edwards’ cases, how do you know they are not in the tiny MINORITY of cases that ACOG admits ARE caused by malpractice? Do you know anything at all about his cases other than some of them involved CP? Of course not. Yet you form an opinion without knowing any of these facts that most CP cases aren’t legit.

    And ACOG didn’t put out any guidelines or standards of care in that study. It was just a survey.

  • Anonymous

    survey my ass.

    go to the ACOG website. they have the study posted there. Its a summary document of all the studies to date on CP and delivery procedures.

    State medical boards dont adopt standards, thats not their job. Its the job of ACOG and all the professional societies to set standards. Nice strawman argument though.

    Lets not be naive about CP lawsuits either. 99% of all CP lawsuits are the plaintiff claiming that the ob/gyn did one of the following:

    1) failed to properly interpret fetal heart monitor readings

    2) failed to order a c section within a relevant time interval

    3) used forceps on the delivery which supposedly damaged the brain and caused CP

    ACOG study addressed all of these aspects, taking away the need for lawsuits in 99% of CP cases.

    Did CP cases drop at all after the ACOG study? Nope. Why is that? Because all this rhetoric about the courts using “standard of practice” is just pure bullshit.

    The bottom line is that the only thing that determines whether a doc gets sued or not is if a “hired gun expert” can be found which disagrees with his treatment/diagnosis. It has NOTHING to do AT ALL with “violating a standard” like the trial lawyers like to claim

  • Curious JD

    Again, since you don’t know how many CP malpractice cases there are v. overall number of kids born with CP, your claim is still, at best, incomplete.

    If only .5% were being sued on, and it went to .75%, then we’re still within the numbers.

    I’m no statistician, but even I can figure that out. You’d think you would be able to as well.

  • Anonymous

    The rule against hearsay is issue. In many states if one expert, either defendant or plaintiff says that a study is authorative, then it can be used at trial. Most experts won’t say anything is authorative because it creates a source of impeachment, if not in this case then in a future case they get involved in. So, you don’t usually get literature or studies in a court room because no one admits they are authorative. There are exceptions, if the witness testifying is an author of the study then it is potentially a prior inconsistent statment, which may be used for impeachment and the jurors will hear about it them.
    The other problem with studies is how good is the study in question? Obviously medical research continues and as often as not what we believe today is appropriate turns out a few year down the line to be felt inappropriate – for example the parameters defining hypertension has gotten a lot tighter hasn’t it? What wasn’t treated 5 years ago would be considered uncontrolled HTN today.

  • yclipse

    I am skeptical of the author of the ME article. By his own admission, he is currently running a consulting company whose purpose is to assist plaintiff attorneys with their lawsuits against physicians. He makes it appear that all he had to do was to sit down with the attorney who had sued him, and he was able to convince him to stop filing cases with no merit and instead to file only cases that have merit.

    The real world does not work that way.

    It may be that he and his company are all that he says they are, but I would need some convincing.

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