Letters to the jury: Look at what your ridiculous award has caused

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A jury sometimes doesn’t realize the ripple effects of large malpractice awards. These letters aim to educate them after they awarded $5.7 million:

. . . mammography is one of the lowest reimbursed tests in radiology, and it carries the highest litigation risk.
No one wants to read mammograms. Many radiologists would rather do invasive procedures than read a mammogram.
So to the jury in this case: Be proud of yourselves; you have given an enormous award to a dying woman. I hope in the future that there are radiologists available to read your mammograms and those of your daughters.
. . . The average general radiologist interprets between 12,000 and 15,000 examinations a year. Included may be 2,000 to 3,000 mammograms. The most conscientious and educated radiologist cannot be perfect.
The huge penalty inflicted here will have three results:
1. Fewer radiologists will be willing to perform mammography. There now is a national shortage of qualified mammographers.
2. Because of malpractice fear, more women will be called back for questionable studies, subjecting them to unnecessary radiation and further expense to the system.
3. More women will be subject to questionable biopsies.
The people ultimately most harmed by awards such as these are women and their families.

Comments

Anonymous
The typical juror couldn’t care less.
Anonymous
I’m not sure that juries are allowed to consider the wider social consequences of their decisions. If they decide guilt, then they must award damages equal to the actual damage caused by the mistake. I think that punitive damages can be awarded if they find that the misconduct is grossly negligent or shows wanton disregard for the safety of the patient. I’m not a lawyer, though, so I hope that one corrects me if I’m wrong…
Anonymous
I have noticed that radiologist’s interpretations of all imaging studies have become increasingly noncommital and nonspecific over the years. Manytimes, they will include a recommendation for another study. The bottom line is that subtle findings become expensive red herrings most all of the time, and we are devoting excessive resources needlessly. The ordering physician’s hands are medicolegally tied when a recommendation for further study is made. My recommendation is to eliminate the chicken-s*** and have a “no-fault” fund to pay for those 1 in 1 million missed diagnoses.
jeff barson
In general I believe that jurors attempt to do their job… which is not to make judgements that are designed to keep malpractice premiums low.
However, I pay malpractice premiums, and while not as heafty as a radiologists, they are an expense.
So, should jurors look at extraneous events in making an award?
Diora
I haven’t found any of the letters particularly educational. This article a pretty well-known professor of radiology is way more educational than any of these letters – check out “The Knowledge Gap” section if you don’t have time.
I don’t see how any of the author’s of the letters attempt to minimize the knowledge gap that exists. If they want to educate the public they should heed the message expressed in the article.
Diora
A typo. When I said “minimize” I really meant “reduce” i.e. I don’t see how any of the letters do anything to reduce the knowledge gap that exists between doctors and general public.
ultrasafe
Elastography may make over-reading of mammograms less of an issue.
Samson Isberg
Jurors have a responsibility to society in general, along with all of us. I can’t see how a juror is doing his/her job if he/she puts his/her head in the sand like an ostrich and awards millions to one unfortunate person, thereby knowingly robbing the general public of a much-needed health service (in casu mammography). You cannot leave morals and ethics behind when you enter the courtroom, only lawyers do that (assuming they ever possesse said morals and ethics), real people – and jurors are supposed to be just that – can’t.
Diora
thereby knowingly robbing the general public of a much-needed health service (in casu mammography).
I’ve never been a juror, only saw court cases on TV. Doesn’t judge instruct the jury to make decisions based on facts at hand and not future implications of the decision?
Forget about malpractice, and think about what juries’ making a decisions about all cases including criminal ones based on what they see might be good for the society could do. “It doesn’t look like this guy is guilty of a particular crime, but he is a dangerous person so he should be locked up”; “yes this CEO committed the crimes, but locking him up may cause the stock prices go down so a lot more people will be hurt”.
Also, given that broader implications of every decision is not explained in courts, how would a jury be equipped to consider such issues?
The link I posted above is different from the latters in that it actally explains the limitations of mammography. The limitations of the test are relevant to the case and far more persuasive than possible impact on the society. Broader implications of the decision are not.
Anonymous
“I can’t see how a juror is doing his/her job if he/she puts his/her head in the sand like an ostrich and awards millions to one unfortunate person, thereby knowingly robbing the general public of a much-needed health service (in casu mammography).”
Why are we not talking about the radiologist in question’s broader duty to society to make sure their actions conform with the standard of care?
Despite physician cries of this place being deprived of doctors as a result of awards or that place being deprived, the fact is those claims have never been proven. Rural areas remain underserved period, regardless of “reform”, jury awards, etc. This is yet another attempt by physicians who should know better to lobby for more money.
Gasman
“I’ve never been a juror, only saw court cases on TV. Doesn’t judge instruct the jury to make decisions based on facts at hand and not future implications of the decision?”
Right. And the judicial branch has never been known to legislate…
Samson Isberg
True, there is an instruction from the judge to the jurors. But the jurors are not obliged to follow it.
As for the “standard of care”: I have never experienced in all my years as an practicing obstetrician that any lawyer or judge ever cared anything about “standard of care”, or even displayed the faintest notion as to what this term really is. To them, the “standard of care” is whatever the last paid perjurer on the witness stand tells them it is.
Dr. Cutemup
No problem for me. The more biopsies the better – job security for me!
Diora
True, there is an instruction from the judge to the jurors. But the jurors are not obliged to follow it.
I think they are, but I don’t know. Once my mother told a judge during jury selection that she couldn’t possibly follow his instructions if they go against her conscience. For some strange reason she was disqualified.
I challenge every doctor to try to think about it from a juror’s point of view. The jurors came to the court “knowing” lots of great things about mammograms. Many of them even believe that mammograms prevent breast cancer. They hear and see these things every day in the media (especially in October) and most of medical internet websites signed by John Smith, MD, radiologist. Then they see this poor woman who did her mammograms and is still dying from breast cancer. They hear an expert witness saying how it is visible on the previous mammogram (given that now you know where to look but this is too subtle a difference). Women in the jury are all “responsible”, they do their mammograms every year, they can identify with the woman. Her experience is what every woman in the jury fears. So do you really think any of them even has a clue as to the implications mentioned in the letters? They believe that by punishing “bad” radiologist, they not only compensate the poor victim but also decrease their own chances to be this woman. The letters tell it’ll increase the number of biopsies – the jurors think it is a good thing because more cancers will be detected because every doctor they know told them false positives is no big deal and nobody had ever mentioned overdiagnosis.
Now, if they had known that mammograms make a difference only in a small percentage of cases and tend to miss the most aggressive cancers than maybe their award wouldn’t have been that large. If they had understood that mammograms don’t guarantee less treatment maybe their award wouldn’t have been as large. If they had seen fewer commercials that show a tiny dot and say how mammograms can detect even this tiny-tiny cancer, maybe they would be more skeptical of the expert witness. But nobody told them that. Are lawyers to blame for this lack of knowledge? Or maybe these same doctors who whole-heartedly support proposals to penalize people who refuse screening. Talking about hypocricy.
As for the “standard of care” I’d love to learn what it means and who exactly defines it. Just in case I am ever selected for the jury.
SarahW
Pay attention to the elastography post. This new ultrasound technique for distinguishing benign from malignant lesions may put an end to biopsy.
Anonymous
“Right. And the judicial branch has never been known to legislate…”
When, in the context of med mal cases, has the judicial branch ever legislated?
Do tell.
Anonymous
“As for the “standard of care”: I have never experienced in all my years as an practicing obstetrician that any lawyer or judge ever cared anything about “standard of care”, or even displayed the faintest notion as to what this term really is. To them, the “standard of care” is whatever the last paid perjurer on the witness stand tells them it is. “
Of course, since you live in Norway, your experience with regard to US cases is, shall we say, limited.
Anonymous
“As for the “standard of care” I’d love to learn what it means and who exactly defines it. Just in case I am ever selected for the jury. “
The standard of care will differ depending on the type of case and the circumstances. Generally, in med mal, it’s the actions a reasonably prudent physician would have taken faced with the same situation.
The reason your mother was disqualified is because we’re obliged to follow the law even if we disagree with it. The place to change the law is in the legislature.
And you attribute too much sympathy to jurors. They are as complex in their thinking as all the second guessers. You think they are all ignorant of the tort reform PR nonsense of lost doctors? Remember, this is the voting public, 50% of whom are Republican voters.
Diora
The standard of care will differ depending on the type of case and the circumstances. Generally, in med mal, it’s the actions a reasonably prudent physician would have taken faced with the same situation.
Let’s apply this to mammograms. If you look at any complex picture and try to find “something” you will have a much easier job if you know exactly where to look. Similar to failing to solve a problem, then hearing solution and thinking “oh, this was so obvious”. An expert witness for the prosecution knows where the cancer is. He is also getting paid, so he is not 100% objective. Even if he had been he is already contaminated by the prior knowledge. He looks at exactly the right spot and says – “here it is, it should’ve been detected early”. So you say – it is a “standard of care” based on one person’s claim – the person with prior knowledge and whose objectiveness is suspect.
If you read the article I linked to in my first post on the subject, cancer is visible in hindsight in the majority of cases. But unless you know where to look, there are a number of other similar spots. Investigating every one of them would result sending most women for biopsies. No, I am not repeating simply what doctors told here, I am just using basic logic. Biopsies have risks. Additional investigation would also increase overdiagnosis, and may even increase mortality of other causes. Keep in mind, that the judgement of a test being effective is based on desease-specific mortality for statistical reasons. So increase in all-cause mortality due to say heart desease or secondary malignancy due to radiation treatment for “overdiagnosed” cases is almost impossible to judge. With benefit being so small in absolute terms, even a “rare” complication is important.
If your “expert witness” hadn’t known where to look in advance, or better yet if you were to sent past mammograms to a number of experts, and hadn’t warned them that it even was abnormal and had asked for their opinion and they had all found it – then and only then could you have claimed “standard of care”. If the court had really been interested in determining “the standard of care” this would’ve been done. But we don’t hear about such tests, do we?
Another aspect is the injury itself and weather earlier detection would’ve made a difference. If you know anything at all about evidence on mammograms (look up summary of evidence – USPSTF or PDQ; also compare the probability of a woman getting breast cancer with that of dying of it on NCR website), you’ll see that mammograms really make a difference in only a small percentage of cases: a) with modern treatment most women survive breast cancer even if it is found later b) most touted 30% mortality reduction (this is above USPSTF or PDQ estimates by the way) means that out of 10 women who would’ve died without mammograms, 7 will still die even with them. There is currently no test to say whether in each particular case the earlier detection would’ve made a difference. This is a fact, not an opinion. Regardless of what your expert witness says, there is no way he can say with any certainty that earlier diagnosis would’ve made a difference. If he claims that he is certain early detection would’ve made a difference in a particular case, you can already see that he is lying. He can tell that because it is smaller it would have, but it could’ve just increased the length of time from detection to death. I assume you heard of lead-time bias.
The reason your mother was disqualified is because we’re obliged to follow the law even if we disagree with it.
This wasn’t a question – this ironic comment was directed at people who say that juries are not required to follow instructions. Obviously, I know that the moment you say “I cannot follow instructions” you are guaranteed to be thrown out. I am not stupid.
You think they (jurors) are all ignorant of the tort reform PR nonsense of lost doctors? Remember, this is the voting public, 50% of whom are Republican voters.
I am absolutely sure the jurors heard about tort reform and the like. Which is why I think these letters to the jury are useless. But I would also bet serious money that the vast majority of jurors vastly overestimate the true effectiveness of mammograms, and the test’ limitations. They probably also underestimate the risks of sending too many women for biopsies. They also have no clue about overdiagnosis and the resulting harm. There have been studies checking public perceptions on mammograms. You cannot honestly claim that jurors opinions as to the effectiveness of early detection in general and the risks of “overdetection” is irrelevant in the opinion they form in each particular case, can you?
This is really the main reason why I think that reducing the knowledge gap referred to in “The knowledge gap” section of Dr. Leonard Berlin’s article is way more effective in changing the verdicts than all the tort reforms and words about implications combined. It is also the information public has a right to know.
Anonymous
“An expert witness for the prosecution knows where the cancer is. He is also getting paid, so he is not 100% objective. Even if he had been he is already contaminated by the prior knowledge. He looks at exactly the right spot and says – “here it is, it should’ve been detected early”. So you say – it is a “standard of care” based on one person’s claim – the person with prior knowledge and whose objectiveness is suspect.”
No, that’s not the standard of care at all. One person does not establish it. If one person were to stand up and say “this is the standard because I say so”, the other side’s counsel would rather quickly carve them up, as would their expert.
“Another aspect is the injury itself and weather earlier detection would’ve made a difference. “
Absolutely. And in many cases that is effectively utilized as a defense. We don’t know in this case because we don’t have the details.
” But I would also bet serious money that the vast majority of jurors vastly overestimate the true effectiveness of mammograms, and the test’ limitations.”
Who knows? But if they did overestimate such effectiveness, do you think that could be because of the claims of the product makers and of the advocates of mammograms?
I agree with you that the public should be educated. But I think you underestimate the amount of education that is involved in a med mal trial – from both sides.
Diora
No, that’s not the standard of care at all. One person does not establish it. If one person were to stand up and say “this is the standard because I say so”, the other side’s counsel would rather quickly carve them up, as would their expert.
Are you saying there is a panel of witnesses for the persecution, all of whom expert radiologists? Or is it still the duel between two experts with persecution’s witness being the one claiming this is the standard of care and the other saying, no it’s not? Also, let’s keep to subject at hand i.e. mammograms. Give me an example of how the fact that a detection of specific early cancer can be proven to be the standard of care in court.
“Another aspect is the injury itself and weather earlier detection would’ve made a difference. “
Absolutely. And in many cases that is effectively utilized as a defense. We don’t know in this case because we don’t have the details.
Are you saying that an evidence presented in a particular case could prove something that science hasn’t discovered yet? What kind of evidence can be presented to prove that earlier diagnosis would’ve made a difference if there is currently no way to determine it? A small tumor can be more aggressive too than a larger one.
Who knows? But if they did overestimate such effectiveness, do you think that could be because of the claims of the product makers and of the advocates of mammograms?
Absolutely. This was the main point of my posts – sometimes I wonder if you read it. This was also the main point of Dr Berlin’s “Manifesto for the Truth in Mammography Advertising” that I referenced – not providing the disclaimers mentioned in the introduction, but telling the truth. That instead of blaming the jurors for the past decisions, doctors should provide honest information about tests effectiveness and risks. As far as “who knows”, I don’t have time to look for references now, but there have been studies as to public perception of mammograms effectiveness that showed that. You could see it for yourself you bother to research the evidence on mammograms, and compared it with the information presented to the public.
I agree with you that the public should be educated. But I think you underestimate the amount of education that is involved in a med mal trial – from both sides.
This would be applicable if you could find a jury that had never heard of mammograms and early detection before the trial. You couldn’t find such a jury in the US. The jurors already have the “knowledge” they got from the advertising. The defense witness has to go against this “knowledge” while the persecution withness can use it. So the defense witness has an uphill battle.
Anonymous
I think you overestimate the public’s knowledge about mammogram. Or at least that part of the public that are male.
“Are you saying there is a panel of witnesses for the persecution, all of whom expert radiologists?”
There is no persecution or prosecution. It’s a civil matter. There is a plaintiff, who has the burden of proving that the actions of the defendant fell below the standard of care and were the proximate cause of their injuries. There is a defendant who says no, either by arguing that the standard of care wasn’t breached, that they were not the proximate cause, or that the damages aren’t as great as stated, or some combination of those. Whether it’s a car wreck or med mal, that’s the case. Only thing about med mal is that physicians have added the hurdle that you must have an expert witness support your case if you are the plaintiff.
“Or is it still the duel between two experts with persecution’s witness being the one claiming this is the standard of care and the other saying, no it’s not?”
It’s not simply their word without support. Again, one doesn’t simply stand up and say “This is it because I say it is”. They wouldn’t last long as an expert that way. I would encourage you to go watch expert witness testimony before you form too many more firm conclusions.
“Also, let’s keep to subject at hand i.e. mammograms. Give me an example of how the fact that a detection of specific early cancer can be proven to be the standard of care in court.”
I can’t off the top of my head – I’ve never had a case involving a mammogram. Do you know of one? Surely there is one you can review for the answers you’re looking for.
Michael Rack, MD
“The reason your mother was disqualified is because we’re obliged to follow the law even if we disagree with it”
I guess your not a believer in jury nullification
Anonymous
The typical drooling American jury member is so stupid, so ignorant, so brain-dead, so moronic, so trailer-trash/public housing, so short-bus educated, so low end of the bell curve that he/she cannot get out of jury duty.
Think only of that charlatan John Edwards making vast millions of stolen money “channelling” unborn babies crying for c-sections, before slack jawed North Carolina juries of 12 certifiable idiots.

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