A jury determines the only guideline that matters

in Uncategorized | 29 responses

I was quoted today in an AMNews article talking about unnecessary testing (subscription needed). It’s quite sad that despite all the evidence that the USPSTF provides, many physicians follow the ones made up by layperson juries during malpractice trials:

The real guidelines physicians follow, often unconsciously, are the ones judged to be the standard of care by jurors in medical liability trials, Dr. Anderson said.
“Medical standards have migrated to legal standards,” he said. “A trial lawyer can always make the case for why you should have gotten additional data.”
When asked about the practice of defensive medicine, Dr. Pho responded: “I have not heard of a lawsuit because of overtesting.”

Comments

Anonymous
Kevin,
Do physicians routinely read trial transcripts to determine what those standards are and how they differ from the USPSTF? Or are they just guessing?
Thanks,
CJD
Anonymous
The thing is, though, there are no legal standards for medicine. thats the way all lawyers want it, because it gives them wiggle room to argue however they want.
Rule #1 of malpractice law:
if the defendant doc followed the medical guidelines to the letter, then buy an expert who says the medical guidelines are worthless
It really is that simple. Its easy for lawyers to work around medical guidelines. You could have 99% of all doctors in the USA sign a document stating what the standard of care/guidelines for managing disease X, and the lawyers would find the small vocal 1% minority who argue that the other 99% of doctors are wrong.
And a judge will be perfectly happy to let that hired gun expert testify.
Anonymous
I take it you know all this from experience?
You have seen a case where 99% of the doctors said X was the standard, and 1 expert said Y was and that testimony was allowed?
Can you give us a cite? Or do you need time to make that up as well?
Doctors don’t want hard standards – they don’t want to have to live up to them.
Anonymous
Is that a joke? Of course doctors want reasonable standards. Thats what professional associations do, thats what most of their purpose is.
Thats why there is a standard vaccination schedule, a standard protocol for tuberculosis therapy, a standard protocol for stroke treatment with tPA, a standard diagnostic criteria for ADHD, etc etc etc
There is push towards evidence based medicine, thats where the system is heading. Its slow, and there’s a long way to go yet, but its coming.
So dont give me this BS that “doctors dont want standards.” Doctors love standards, it makes their work much easier than having to read up on 50,000 different clinical trials.
Anonymous
Hey, CJD, did you see the post on Overlawyered about the $1 million verdict against a doctor’s clinic because he used evidence-based medicine?
Criticize those lawyers, and then maybe you’ll have some credibility.
http://www.overlawyered.com/2004/08/update_commentary_on_merenstei.html
Anonymous
You should have read the embedded links. Physicians are actually resisting EBM, and that’s why it didn’t fly in that case. Four other Virginia physicians said they do a PSA as a matter of course when they have a patient with the plaintiff’s characteristics. Were they all whores?
You should really read more than just what Overlawyered has to say.
Anonymous
Kevin,
Maybe you missed my question. In the story you posted, it says “it’s quite sad that despite all the evidence that USPSTF provides, many physicians follow the ones made up by layperson juries during malpractice trials”
I am curious as to whether you physicians read trial transcripts on a regular basis to determine what the standards of care in particular situations are. Have you ever done so, or do you feel that comment is overstated?
CJD
diora
You should have read the embedded links. Physicians are actually resisting EBM, and that’s why it didn’t fly in that case. Four other Virginia physicians said they do a PSA as a matter of course when they have a patient with the plaintiff’s characteristics.
So? Just because some doctors do it as the routine and maybe even believe in it, patients aren’t supposed to be advised on benefits and risks and allowed to make their own decision? There often are disagreements between doctors. So according to you, if some doctors order a test because they believe in it (even though there is NO evidence it saves lives) all doctors should?
What about the patients who would rather not have tests which are not proven to actually save lives and who want to be informed of risks of tests and the actual probability of benefit (expressed in NNT rather than meaningless relative numbers) and who want to make a decision based on their own preferences. Do they have rights?
The doctor named in a lawsuit provided a patient with information and allowed him to make his own choice. The patient made a choice. He should live by it. Are you arguing against informed consent?
Anonymous
Diora,
To tell you the truth, I cannot tell what the grounds for the judgment against the program were (the doctor was exonerated). I’ve not seen a link to the judgment.
diora
Anon at 11:30 –
There is NO evidence that PSA screening reduces mortality from prostate cancer. Yes, it can detect cancer early – so would random biopsies for people on the street. There is no evidence that it is much better.
Also, early detection doesn’t necessarily change course of the desease. If cancer is very aggressive and spreads microscopically from the start, early is always too late; if the cancer is slow-growing, there may be ample time to cure it when it starts showing symptoms; if it is very slow or latent, it may not cause any problems in your lifetime, yet if found you’ll be hard pressed to be treated and suffer very serious side effects from treatment e.g. become impotent or incontinent as in PSA. This is true for most screening by the way – even recommended screening. The only question is – is there a group of people whose cancer grows sufficiently fast to kill you yet sufficiently slow that a test can pick it up before it spreads. The only evidence that shows that the group for whom screening makes a difference are randomized controlled trials that show that less people die from the desease in screened group than in non-screened group. n-year survival after diagnosis is meaningless in this case because if an aggressive cancer is detected in 2000 and you die in 2006 your survival is longer than if it had been detected in 2004 and you still died in 2006, but you wouldn’t say you are better off, would you? Yet many websites now keep telling us how “the 5-year survival is higher if cancer is detected early”. Yes it is, so what? There often are doctors who are listed as authors of these websites which makes me wonder if these doctors have ever heard of lead-time bias. I bet some of these doctors testify at trials; how many jurors do you think understand that 5-year survival is not a meaningful measure of screening’s effectiveness?
Many specialists, like urologists, tend to see individual cases rather than studies – these is the realm of epidemiology. So urologists see survival of individuals after diagnosis rather then the complete picture and form an opinion based on that. As a result they tend to be more pro-testing. For the sake of argument let’s assume that the fact that they make money from the test never affects their judgement. They will also make great “expert witnesses”: they are experts and they are saying something most people in today culture believe – that earlier is always better.
If the test is not recommended, it hasn’t been shown to save lives, how could be any grounds to find a clinic liable for having a policy to provide honest information to patients? Not for refusing to order a test, but simply for honestly explaining lack of evidence and risks? As a patient wouldn’t you want to have this information? I would. In fact I’d like this information even for recommended tests because just because a test has been shown to save lives doesn’t mean that for me personally the price of this small chance of having my life saved isn’t too high (I mean money, I mean false positives and overdiagnosis). I’d love it if my doctor had been honest about all screening and let me decide what I want. No chance of it in today’s world.
The majority of people today fail to understand the complexity of cancer screening. “Early detection” is today’s religion, “get screened, it’ll save your life” is the pervasive message in the media. If you choose not to be screened for something, you are “irresponsible” or “stupid” and if you happen to get a desease later “it is your fault, how could you not have had a test”; if your doctor fails to order a test, he is “negligent”.
This is the pervasive mind set today. Jurors are people like most of us, they listen to the same radio and TV program and read the same newspapers. They bring the same mindset to the courtroom.
An expert witness testifying for- testing is telling what most people believe whereas an expert witness testifying how the test is not recommended and is not shown to work is telling something counter-intuitive. Whom would jurors are likely to believe?
One last thing. There is NO test today to distingish cancers that will spread from those who that are not. There is NO way to say that if something had been detected 5 months/years earlier it would’ve made a difference. So ANY doctor that goes into courtroom and says with certainty that it would’ve make a difference is lying. How many people undertand it?
Anonymous
Again, we have no clue what the claim against the clinic was, so who knows?
diora
Anon at 3:41 – isn’t this article referenced in the previous post clearly explained that the case was about not ordering a PSA test on a symptomless 53-year old but instead ‘daring’ to explain risks and benefits? It also explained the evidence presented at trial. Here is more abou it. But here is a quote for you: “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.”
This is a pretty well-known case, so maybe you could find more details about it and enlighten us?
BTW – a google search will find a number of lawyers who advertise going to them if doctor failed to order a PSA test.
Anonymous
I looked, and could find no more details.
Did you note that 15 different standards that had been promulgated were put into evidence? Evidently the EBM on this subject hasn’t reached a final conclusion adopted by a majority of physicians.
Anonymous
So if doctors want it so bad, why is it so slow in coming? Your statements contradict each other.”
What kind of logic is that? Those 2 statements in no way contradict each other.
Here are the reasons:
1) You need research scientists to establish EBM. Being a research scientist pays peanuts compared to working in clinical practice. Therefore most docs choose clinical practice over research.
2) To establish EBM requires well organized clinical trials and tons of scientific research lasting many years. Therefore its a slow process. You cant just jump into EBM immediately, you have to transition towards it and that takes time.
3) Doctors are responsible for at least 95% of all EBM advancements. Who do you think runs the clinical trials on which EBM is based? Its certainly not PhDs, clinical trials are required by law to be directed by medical doctors. PhDs run basic science reserach that does not involve humans. MDs run the human-based clinical trials that turn into EBM guidelines.
Doctors want EBM, and its slow in coming for the reasons described above. Do some old-school docs resist? Sure. Opinions are like assholes, there are always going to be some idiots who refuse to go along with it. But the vast majority of docs support EBM.
Again, without EBM guidelines, doctors are forced to read up on hundreds of different studies and analyze arcane statistics. Docs would love to hand that duty over to professional associations, who sort thru the hundreds of studies on a given subject and compile the conclusions into EBM-based guidelines that all doctors can then follow.
Anonymous
To the person who said doctors don’t want guidelines and something like “we can’t have it both ways”:
You are an idiot and obviously are not in the medical field. Look up http://www.guidelines.gov or http://www.americanheart.org or http://www.uptodate.com and educate yourself before you spout any more ridiculous hatred.
If you have a dislike for a particular physician that doesn’t mean you have to hate all doctors. By the law the same holds true for religious and ethnic groups.
b
Anonymous
It has nothing to do with a hate for doctors. It’s simply recognizing a reality. Many physicians refuse, as evidenced by the EBM debate, to follow these guidelines as a matter of course. This undermines the argument that these guidelines are in fact the standard of care in those situations.
jerry
CJD,
Kevin probably doesn’t want to talk to you because your arguments are always circular and you are not nearly as objective as you think you are.
No I don’t personally look up transcripts of court cases but a large part of my CME training in the last 5 years starts with a court case as an introduction to a topic. I just attended a whole day seminar put on by my insurer (which was formed and managed by my physician group so I am not their whore) that went over legal cases. It is disgusting bullshit.
A problem with EBM is that the resulting guidelines apply to populations and not always to the individual. For example PE may be missed in up to 2% of low risk cases. It is difficult to diagnose and testing is imperfect, so most studies start with the premise that you have to feel comfortable about a 1-2% miss rate. However if you happen to be that 1-2% lawyers don’t let us get away with that even though on a resource utilization population based algorithm the standard of care was followed. So that is where EBM gets thrown to hell and the juror/lawyer standard of care comes into play.
Or what algorithm do you pull out for the 350 pounder Swahili only speaking, with a history of CHF, CRF, lupus, fibromyalgia, high on crack, who complains of headache, chestpain, “buzzing”, “tweaking”, “bugs”, with pain radiating from the right shoulder to the left knee after turning a circle in the abdomen????
……….Many patients just defy any type of guideline or algorithm.
Anonymous
Jerry,
There is nothing circular at all about my question. Kevin made an assertion, and I’m simply asking if he can back it up. Evidently not. I’m sorry you don’t like it that I ask questions which illustrate that many of your claims lack a factual basis.
I take it you do not back up Kevin’s story either, since your sole source of information is what your INSURER tells you. Do you guys simply believe everything you’re told as long as it agrees with your preconceived notions? Doesn’t sound like much of a recipe for learning.
Speaking of circular logic, you illustrate it in your post. One, you want to say everyone is different, but then you want to say only you get to set the standard of care. In short, the only one qualified to judge you is you. That, my friend, is circular logic.
Anonymous
“your sole source of information is what your INSURER tells you”
CJD making assumptions again
“Do you guys simply believe everything you’re told as long as it agrees with your preconceived notions?”
This is CJD’s longstanding preconcieved notion
“only you get to set the standard of care.”
another CJD inserted assumption.
Your notions are so preconcieved that you can’t even acknowledge a legitimate point. In summary: All physicians want EBM. EBM guidelines can be helpful. Problems with EBM guidelines are that the science and data is always changing, sometimes conflicting, and are often drawn up with professional society bias or pharmaceutical money bias. Often individual medical situations defy placement into a guideline. In those situations we have to think of the potential juror/lawyer “guideline” for self preservation so consequently defensive medicine runs amok.
For someone who is seemingly smart and seemingly has an ongoing interest in these topics it is quite saddening that you can’t grasp some common realities apart from your preconcieved agenda.
To answer your original question: Yes we study trial outcomes and how they differ from standard practice and knowledge. Wouldn’t you study outcomes related to your business practice?
Anonymous
“”only you get to set the standard of care.”
another CJD inserted assumption.”
Not an assumption at all. A malpractice trial MUST have a physician testify to the standard of care. That is a fact, my friend.
“In summary: All physicians want EBM. EBM guidelines can be helpful. Problems with EBM guidelines are that the science and data is always changing, sometimes conflicting, and are often drawn up with professional society bias or pharmaceutical money bias. Often individual medical situations defy placement into a guideline. In those situations we have to think of the potential juror/lawyer “guideline” for self preservation so consequently defensive medicine runs amok.”
In summary: You just contradicted yourself. You say we all ant EBM, but then we don’t want it to apply when we don’t want it to apply.
“For someone who is seemingly smart and seemingly has an ongoing interest in these topics it is quite saddening that you can’t grasp some common realities apart from your preconcieved agenda.”
You mean the agenda of inserting some inconvenient facts in your continued quest to keep your patients from holding you responsible?
“Yes we study trial outcomes and how they differ from standard practice and knowledge. Wouldn’t you study outcomes related to your business practice?”
Can you give some examples? It appears we are finally getting somewhere. Maybe some cases you have reviewed the transcript and medical evidence in and disagreed with the finding?
Anonymous
Part of using clinical guidlines is recognizing when they do not apply. For instance. It is well established that diabetics do better in terms of complications when their hemoglobin A1c is under 7. A recent patient of mine who is diabetic, 85 years old with an 8cm aneurysm in his chest and another in his abdomen. He also has metastatic squamous cell cancer in his left arm and axilla. His HgbA1c is 8. Am I to lean on him about sugar control and switch around his medications just to “make guidelines”? Will that extend his life by a single minute? Unlikely.
Yes. The only people qualified to question my judgment are people prepared to understand that even very good guidelines cannot capture every situation. Clearly that is not you.
Anonymous
Thus, you illustrate why EBM fails – because you just back cases out whenever you don’t use it. And guess what, you’re not always right, so there will be at times physicians who will disagree with you, and they’ll be right. And sometimes, they’ll even dare testify for the plaintiff. How dare they!
Anonymous
Fortunately juries are able to understand the complexities of medical practice better than bozo plaintiff lawyer. Serious question for our lawyer friends. Is there any other area of law where the plaintiff loses 70-90% of the time?
Anonymous
The plaintiff doesn’t lose 70-90% of all the cases they take. Just the ones that go to trial. Which are probably 10% of all cases.
lifeguard in the shallow end of the gene pool
Right, including cases that don’t go to trial makes the numbers even worse because of frivolous suits that go no where. My self insured medical group makes a liability payment in only 5% of ALL SUITS FILED. You guys are really pathetic.
Anonymous
“Right, including cases that don’t go to trial makes the numbers even worse because of frivolous suits that go no where. My self insured medical group makes a liability payment in only 5% of ALL SUITS FILED.”
What’s the name of that group, because I strongly doubt that?
Are you referring to per defendant numbers or per claimant? And all suits filed still doesn’t tell you the story, because I’m sure you pay on claims pre-suit, don’t you?
Anonymous
MedAmerica Mutual
Anonymous
“because I’m sure you pay on claims pre-suit, don’t you?”
maybe, but I doubt it. I have never heard of it in 10 years but I can’t speak for every member in the group.
Anonymous
So, if I get the thrust of this comment thread, the argument is between those who DON’T believe doctors practice defensive medicine and those who actually know what they are talking about?
Just inserting a reality check.
The idea that doctor’s decisions are not heavily influenced by what they hear, read and experience both first and second hand from legal cases and even the media makes about as much sense as the idea that doctors would read legal briefs to make decisions.
For example, is there anyone here who doubts the old adage that you are less likely to be sued if your patient LIKES you? … where’s the EBM in that?
The truth is, we all practice the best medicine we can based on a mix of the science we learned in school, the clinical skills we’ve picked up from 3rd year on and, our own experience which includes research, reading and… frankly… gestalt that comes from dealing with similar situations repeatedly.
Maybe this was a useless rant, but it seems to me that we’re pretending to have good answers to what are just very bad questions – namely, that people always sue based on outcome and not on practice. EBM is just us pretending we can standardize the practice… when in reality we will always be sued on the outcome. This is why EBM fails and doctors end up practicing defensively when necessary. ~JCM

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