Attorneys commonly hire experts to provide testimony about whether the way a physician cared for a patient was negligent or met customary care standards, but too often that testimony of expert witnesses may be biased or uninformed. New research suggests that a better way of providing expert opinion on standard of care in medical malpractice cases may be to randomly survey a group of peer physicians and use their collective responses to identify customary care.
Research from the University of Iowa in Iowa City suggests that the survey method could yield more useful information than expert testimony. [J Gen Intern Med 2002; 17(7):546-55]. The survey method shows promise as an objective method to assess usual practice for specific medical problems, says Arthur Hartz, MD, PhD, the Quality in Medi-cine Professor in the University of Iowa Depart-ment of Family Medicine and the study’s principal author. Results from such surveys can be used in court or in settling a case before trial, he says.
The investigators focused on seven primary care medical malpractice cases: three actual closed cases, three variations of two of those cases, and one active case. In all the cases, the facts of a patient’s symptoms were not disputed, but the physician did not make the correct diagnosis or failed to refer the patient to a specialist.
Survey could address question of bias
The important question was whether the majority of peer group physicians would have made referrals or ordered diagnostic tests, necessary steps to make the correct diagnosis, Hartz says. Cases where the issue is failure to diagnose in a timely way make up about one quarter of all medical malpractice cases nationwide.
"Underlying such cases is the question of customary care — whether the defending physician practiced mainstream medicine," Hartz says. "Because referrals and tests are costly and sometimes risky to the patient, they cannot be ordered in all cases. The question in medical malpractice cases is whether most physicians would have ordered the tests for patients who are similar to the plaintiff."
Typically, jurors must decide how most physicians practice based on the testimony of a few medical experts, who may give conflicting opinions. Because jurors lack the medical expertise to judge the substance of the testimony, Hartz says they must rely on the experts’ style and credentials, which are fallible indicators of accuracy.
"The most common criticism of expert witnesses is they are biased because they are hired and prepared by each party’s attorney. To reduce bias, it has been suggested that judges, not lawyers, bring in one or two medical experts. However, unbiased witnesses may also be wrong," Hartz says. "Few physicians know how others practice. Our research suggests that most physicians think others practice the same way they do."
Michael Green, JD, a former faculty member of the University of Iowa College of Law who contributed to the study and now is at Wake Forest University School of Law in Winston Salem, NC, says the system of using expert witnesses is disliked by nearly everyone — even those who use it regularly — so a new survey system might be welcomed.
"The difficulties with adversarial expert witnesses are well known and have generated significant efforts at reform," Green says.
The physicians surveyed in the study all practiced in Iowa. The surveys included responses from 219 of 350 queried community family physicians (an almost 63% response rate) and 110 of 216 queried community specialists (a 51% response rate). In addition, responses were received from 91% of 54 academic family physicians and 51% of 54 academic specialists.
For the three closed cases, 47%, 78%, and 88% of the family physicians surveyed said they would have made a different referral decision than the charged doctors did. For these three cases, testimony was available from the opposing medical experts on the actual case. In addition, for each closed case, 65% or more of the surveyed physicians disagreed with testimony from one medical expert.
The three variations on two of the actual cases helped the investigators determine that physician judgments depended on the quality of the medical management more than the severity of the outcome. In one case, the patient died of a heart attack but had atypical symptoms of heart disease. The majority of physicians determined that the physician charged with malpractice had acted adequately even though the patient died.
In another of the closed cases, a young woman did not receive a timely diagnosis of appendicitis. She survived, but suffered due to the missed diagnosis. In that case, the vast majority, 80%, of the physicians surveyed determined that the defending doctor had provided inadequate diagnostic care, even though the case did not result in death.
"That type of information may be more helpful to the jury than the conflicting testimony of two adversarial experts, or it may help the jury break a tie when confronted with conflicting testimony," Green says.
To survey physicians, the researchers summarized each medical malpractice case with a one-page abstract. "We were able to simplify the cases without distorting them," Hartz said.
In addition, the study showed that physicians were interested in medical expert testimony. Hartz said he expected a 25%-35% response rate; instead, 63% of the family physicians contacted responded to the survey.
"This high response rate without compensation shows that physicians believed the study was important and not burdensome," Hartz says.
Hartz says that response rates may be even higher if the surveys are sponsored by medical societies and physicians are compensated for their time. However, the authors also recognize that it is a big step from testing this method in a research study to having it widely adopted in the courts.
"The research shows that the surveys are practical and provide valuable information. The next step is to find out how they can be used in practice. We want to find lawyers who will use this method," Hartz says.
He added that a serious concern, usually held by plaintiff’s lawyers, in medical malpractice cases is whether physicians are prone to professional allegiance and will, unconsciously or not, strive to protect one another. He says the study revealed that, overall, physicians are willing to criticize each other.
"There may be a small group of physicians who will not criticize care they know to be bad. However, the majority of the physicians in our study were critical of the physician defendants. When surveyed physicians supported the defendant, the support was usually well reasoned," Hartz says. He calls the current malpractice system unfair to both physicians and patients.
"If physicians have a chance to improve the system, they will. They would only hurt themselves by defending bad care," he says.
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