How only lawyers can determine medical standard of care

by Michael Kirsch, MD

A medical malpractice case was recently filed against me.

I received the thick envelope from noble and altruistic Cleveland barristers about 6 weeks ago. Once again, I saw my name in the good company of many other physicians and our local hospital. I reviewed my medical records and felt comfortable with the care I had provided. In a medical malpractice case, quality of medical care is important, but the truth won’t set you free. It’s the documentation, stupid! I believe that I practice good medicine, but I know that I document obsessively. The former is important to my patients, and the latter is appreciated by my lawyer.

I had a single meeting with my attorney to review the legal preliminaries. It was clear that he had studied all of the relevant documents and was prepared. He was a senior partner at the firm and looked so much like a lawyer, that I thought he must be an actor. He donned a well tailored conservative suit and had elegant silver hair. He wore reading specs that conveyed a professorial demeanor. He was measured in his speech. Did he know any law? I hope so, but who can tell? As marketers and advertisers know, packaging is more important than the contents.

I had no clue where my standard of care may have strayed from the community standard. Only a person with a law degree can make such a determination. After all, what do we doctors know about medical quality? A physician cannot be expected to offer an authoritative opinion whether medical care is within acceptable standards as would be practiced by a reasonable and prudent physician if said physician were faced with similar clinical circumstances and knew, or should have known, that the patient, known as “Victim A”, had a condition or set of conditions that within a reasonable degree of medical probability may have resulted in an adverse outcome had the physician not instituted prudent and proper medical care and treatment in accordance with established medical custom and practice.

Making a medical standard of care determination is certainly beyond the intellectual reach of a concrete thinking gastroenterologist who spends a good portion of his time in rectums. Lawyers, however, are paid handsomely to unravel such insoluble questions. So, at the close of our meeting, I asked him straight out why he thought I was being sued.

The wizened attorney thought for a minute before responding. He leaned towards me and with focused eye contact stated, “I have no idea”. That made two of us.

In Ohio, filing a medical malpractice case against a doctor requires that a physician sign an affidavit of merit, a sworn statement, attesting that the standard of care was breached. While these affidavits are generally signed in advance of filing suit, judges will give plaintiffs some latitude and permit the case to be filed if an affidavit will soon follow. I am in this window period, when the plaintiff’s attorney is trolling around the state trying to pay off one of my colleagues for a signature. I don’t think he’ll find one, even though this service can earn a physician up to $1,000 an autograph. Maybe some of these guys should be thrown out of the profession.

How does anyone credibly defend a system that targets innocent physicians routinely, vaporizes tens of billions of dollars on defensive medicine and misses the vast majority of patients who have been the victims of true negligence?

If physicians performed according to these standards, we’d all be in handcuffs.

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower.

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