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“I bring this to your attention because, in 1971, I took an oath to impart precept, oral instruction, and all other instruction to all indentured pupils who have taken the Healer’s Oath. Having done so, if it strikes you that, during the aforementioned trial, an opportunity was missed, only to be rectified by the Court of Special Appeals, then I leave you with this admonition. When you are a defendant in a malpractice suit, and you believe you are in the right, be relentless and use everything at your disposal to expose the opposing expert as a miscreant. Had defendants in this suit been so disposed, likely, the outcome would have been different.”
Editor’s note: This show refers to the Abeline paradox, which is when “a group of people collectively decide on a course of action that is counter to the preferences of many or all of the individuals in the group.”
Howard Smith is an obstetrics-gynecology physician.
He shares his story and discusses his KevinMD article, “A counterintuitive strategy when you are sued for medical malpractice.”
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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.
Transcript
Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today on the show, we have Howard Smith. He’s an obstetrician-gynecologist, and he wrote the KevinMD article “A counterintuitive strategy when you are sued for medical malpractice.” Howard, welcome to the show.
Howard Smith: Well, thank you, Kevin. I appreciate this opportunity.
Kevin Pho: So we’ll get into your article in a little bit, but first off, can you share your story and journey to where you are today?
Howard Smith: I am an obstetrician-gynecologist. Some colleagues mistakenly think I burned out because I no longer practice my specialty, but I’d rather practice medical weight management. I do not deny the phenomenon of burnout. Being a doctor is baked in the cake. Practicing medicine is just a way to make money, but being a physician has many dimensions. There is another phenomenon. I call it burn-in.
I wanted to be a doctor since I was a young boy. In fact, the first book I ever read is The Last Angry Man. It is about this other phenomenon. It is about an evolving commitment to the medical profession over the course of one doctor’s career. I could never have predicted how it would influence me 60 years later. Dr. Samuel Abelman is a fictional character, a general practitioner in the twilight of a career that spans 50 years. He sees his mission as practicing quality medicine that improves and sometimes saves the lives of his patients. The time is the 1950s, and the place is Brooklyn, New York.
The emerging professional trend is specialization. He regards specialization as antithetical to his mission. Although his colleagues see specialization as a greater good, he sees it as a conflict over patients and is outspoken over what he anticipates the impact of this conflict to be, both to the profession and to his patients. He is always a bit of a curmudgeon, but now he’s on the radar and is the subject of ridicule by most of the elite physicians in Brooklyn, who try to silence him. In today’s lexicon, this is cancel culture. He’s the last angry man only because other physicians resign themselves to their fate.
Like Dr. Abelman, our mission is to improve and sometimes save lives by practicing quality medicine. Unlike other professionals whose mission also is to improve and save lives, we have no qualified immunity for unfortunate results beyond anyone’s control. Unfortunate outcomes are inevitable, even when practicing quality medicine. Every year, there are 46,000 malpractice suits, $100 million in malpractice premiums, and $45 billion in defensive medicine. Accompanying these are an expanding medical liability litigation industry, integrated health systems, the demise of private practices, and the erosion of the patient-doctor relationship.
These trends are also antithetical to our mission, yet no angry voice is raised. Instead, most physicians regard this as the greater good, yet they resign themselves to their fate and only look to protect themselves. I question: Protect from what? What underlies today’s conflict is not patients. It is medical interventions, more specifically, whether a maloccurrence from a medical intervention is caused by a medical error or is just a random event. Essentially, this is what we’re trying to protect ourselves from.
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Kevin Pho: So let’s go straight into the KevinMD article that you wrote. It’s titled “A counterintuitive strategy when you are sued for medical malpractice.” Now, for those who didn’t get a chance to read that article, can you just briefly summarize it and share the story of why you decided to write it?
Howard Smith: But for Byrom v. Johns Hopkins Bayview Medical Center, this article would not have been written. It is a typical malpractice suit over the failure to perform a cesarean section. However, it is far from typical. In the interest of time, I forgo the details, only to say it ends in a $229 million plaintiff’s verdict, the largest medical malpractice verdict in history. Eighteen months later, the Maryland Court of Special Appeals overturns the verdict. Its decision singles out one of the plaintiff’s medical expert witnesses for proffering a version of informed consent which essentially obliges doctors to force a mother into accepting a cesarean section.
[Remark removed by the editor.] I’m committed to making certain this expert never again testifies against another physician. He is from Ohio, but [remark removed by the editor], so I intend to file a grievance with medical authorities in Maryland, where I live and where I am a licensed physician.
First, I approach my colleagues for support individually. They enthusiastically share personal anecdotes about hired guns, but when push comes to shove, they decline support. I now know that the reason for this is the Abilene paradox. Without their support, I file a grievance with MedChi, which is the Medical Society of Maryland. [Remark removed by the editor.] My minimal expectation is that MedChi would respond, whether it agrees or not. [Remark removed by the editor.]
In May, I bring MedChi’s behavior to the Board of Physicians of Maryland. It responds that the board has no jurisdiction over organizations like MedChi, which contradicts what is found about MedChi on the board’s own website. The response concludes, “You should consult legal counsel before proceeding further.” [Remark removed by the editor.] When physicians have reason to fear reprisal or loss of favor from medical societies and boards of physicians, they will remain silent. This is, again, the Abilene paradox.
Kevin Pho: So let me ask, exactly what did you find that was so unacceptable from this expert witness, just so my audience can get a better idea?
Howard Smith: Obviously, in the medical records are 11 words. Ms. Byrom had recently arrived in the United States from Liberia. In fact, the first 17 weeks of fetal development occur in Liberia, where the incidence of the same adverse outcome alleged as the injuries in this case is 65 percent higher. However, this is never known by the jury. The expert never addresses these 11 words. There is an inexplicable silence during trial. Afterwards, I learn why. It’s because in a press conference, the Johns Hopkins spokesperson states that there’s some federal law that prevents discussion. I don’t believe that either.
More specifically, this medical expert proffers a version of informed consent that states that a doctor has an obligation to convince a patient, to the point of forcing a patient, to do what the doctor believes is the best treatment. This is totally adverse to the concept of patient autonomy that is embodied in the concept of informed consent.
Kevin Pho: So tell me, currently, what qualifications do medical experts need in order to get on the stand?
Howard Smith: They just have to be a member of the same profession, the same specialty that the doctor who is being sued is in, so that they can state that they have knowledge of the facts of this case and can proffer an opinion that will help a jury decide on medical information that would otherwise be unknown. In other words, medical experts are the evidence.
Kevin Pho: And if someone takes issue with what the medical expert says, or questions some of the information that expert expresses during a trial, what’s the normal recourse that you have?
Howard Smith: There is none. I took the bull by the horns by expressing my displeasure with this expert, by filing a grievance against him with the medical society in Maryland. [Remark removed by the editor.] I do have recourse, though. I take this issue to the Ohio board of physicians, and it responds by, first of all, saying the matter is being investigated, and they do take action, but the action is confidential. What I conclude is, if you don’t take the bull by the horns and confront the Abilene paradox, nothing ever gets done.
Kevin Pho: We’re talking to Howard Smith, who’s an obstetrician-gynecologist, and he wrote the KevinMD article “A counterintuitive strategy when you are sued for medical malpractice.” So, Howard, what kind of reform specifically would you suggest to prevent instances like this from occurring again?
Howard Smith: Health care has always been an environment in which elite interests habitually exploit market forces. The exploitation is under the pretense of some greater good. However, there is always an ulterior motive. In Dr. Abelman’s time, the battle is over specialization. The elite interests assert that the greater good is served when certain specialties have authority over certain medical conditions. Disputing this is unprofessional. Dr. Abelman does not deny the greater good; he just sees the ulterior motive. He feels specialization is a ploy for elite interests to take a piece of the action. Considering that today the American Board of Medical Specialties collects dues from 40 specialties and 87 subspecialties, he might be right.
The battle over medical malpractice is no different, and it’s not up to reforms. It’s up to us. The greater good which elite interests pretend to serve is the right of any victim of a medical error to be made whole. Disregarding this is not only unprofessional, it is un-American, until it’s finally understood that, for them, any maloccurrence following a medical intervention is a medical error until proven otherwise. The ulterior motive behind their virtue produces an entire medical liability litigation industry that is subsidized by 46,000 malpractice suits and $105 million in malpractice premiums every year.
Kevin Pho: And tell me, Howard, what are some specific things physicians can do to improve or reform the medical liability system?
Howard Smith: It is up to us. And it is up to us to govern ourselves. Dr. Abelman is the last angry man because he has the audacity to challenge the elite interests in his time. There are elite interests in our time too. Today, no one writes stories about physicians like Dr. Abelman. He is only the last angry man when everyone else surrenders. There is no last angry man when, collectively, there is no surrender.
Make no mistake about it. This is war, and the strategy is divide and conquer. To the victor belong the spoils. We did not start this war. My model does not end it, but it does increase our firepower. Today, the battle is over malpractice, but in the future, it’s over socialized medicine. It has always been the decisive battle, even in Dr. Abelman’s time. As in any war, winning this battle is important, because winning it, and winning it decisively, changes the momentum.
Kevin Pho: And my final question, Howard: What’s your take-home message that you want to share with the KevinMD audience?
Howard Smith: Well, if doctors want to direct their own future, they must first confront the Abilene paradox. When you are right, sometimes you stand alone, but not for long. If not for confronting the Abilene paradox, I would not have petitioned the Ohio board of physicians. [Remark removed by the editor.] Physicians have the power of legitimacy. The only thing that separates us from our future is that we fear ruffling a few feathers.
Kevin Pho: Howard, thank you so much for joining me and sharing your time and insight, and thanks again for being on the show.
Howard Smith: Well, thank you, Kevin.
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