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ACEP Now: Vol 33 – No 09 – September 2014Where is tort reform headed? Caps, safe harbors—perhaps nowhere? The jury is out. Caps (financial limits) on noneconomic damages, review panels, and many other seemingly viable strategies have been implemented with mixed but overall disappointing results. Safe harbors, providing legislative protection for following decided-upon standards, are a far-reaching goal that has gained some traction in the past year. However, if you’re waiting for a safe harbor, you’ll run aground with respect to liability reform while waiting for its protection. Perhaps the most viable solution at our fingertips is adjusting the standard for negligence (ie, ordinary negligence to gross negligence) in medical liability tort claims. This is often confused with the “burden of proof” required to prove your position. The burden of proof for “ordinary negligence,” the current standard in medical malpractice cases, is defined as a “preponderance of evidence.” The other end of the spectrum is “beyond a reasonable doubt,” the standard for criminal cases. Somewhere in between is the “clear and convincing” standard in which plaintiffs would need to prove that it is substantially more likely than not that their allegation is true. Although this is beyond the scope of this article, several states have or are pursuing adjustments to the standards for the burden of proof.
A Possible Solution?
Perhaps the most intriguing avenue, which is also related to burden of proof, is the duty standard. If you have a duty to act, what is the standard of care required to fulfill that duty? For ordinary negligence, the standard is one of reasonableness: what a reasonable provider with similar training would do in a similar situation. Doesn’t it sound reasonable that much of what we do while practicing the art of medicine could be deemed reasonable? Yes, if someone else wasn’t trying extra hard to prove exactly the opposite. Herein lies the problem—and the ray of hope with changing the duty standard, which appears to be one of the most viable solutions for tort reform currently available. If the duty standard were changed to a standard much further from normal practice, we could easily identify when negligence really has occurred. With the current reasonableness standard, variations in practice and patient outcomes are all too often deemed negligent. Despite the fact that we all try very hard to provide the highest quality of care possible, reasonable choices may result in unanticipated and even disastrous outcomes. Should a well-intentioned provider be subject to allegations of negligence under such circumstances? In our opinion, absolutely not. Using a gross negligence standard would require that the provider’s actions are less reasonable than what would be required under an ordinary negligence standard, and it would identify cases in which little or no care at all is being taken to provide acceptable quality of care. Such a standard should result in identifying those cases in which the duty to the patient was clearly breached, avoiding labeling cases of medical nuance as negligent. Gross negligence is defined as reckless behavior or conscious disregard for the risk of one’s actions, actions so unreasonable that a layperson without medical training could easily recognize the negligence with little or no need for expert witness testimony. In addition, when the allegation is more serious (eg, gross negligence), the burden of proof is often simultaneously increased. In most jurisdictions, the burden of proof for gross negligence requires clear and convincing evidence as opposed to just the preponderance of evidence, which is most common with the ordinary negligence standard.
Legislatively, these are hard-fought battles, and even when won, sometimes the new laws are overturned on appeal to state supreme courts by a tenacious plaintiff’s bar. Forces undermining these new standards are even closer than we think. Our colleagues providing expert witness testimony for plaintiffs may knowingly or unknowingly undermine the use of increased negligence standards and the burden of proof. They are the expert witnesses who testify falsely, misleadingly, or in a biased way, propagating and fueling our litigious medical-legal environment. We have an obligation to identify those who are violating the ethical obligations of the expert witness and to ensure unbiased testimony in our courts for a more level playing field, guaranteeing the most appropriate legal outcomes.
Case in Point
As an illustrative example, in 2010, Georgia passed a major tort reform measure. This measure requires a plaintiff to present “clear and convincing evidence” to prove gross negligence has occurred. The legislative initiative is applied to emergency medicine cases.
“[G]ross negligence is the absence of even slight diligence, and slight diligence is defined…as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of diligence that even careless men are accustomed to exercise.” Johnson v. Omondi GA Sup Ct. decided Nov. 14, 2013, p. 7. O.C.G.A. § 51-1-4
Even the Supreme Court of Georgia recognizes that this is a confusing definition, particularly as applied to medical malpractice cases. However, many other courts have simply stated that gross negligence is a significant deviation from negligence. While it may yet be ill-defined by case law, it is meant to be a very high hurdle to overcome. This legislative change is a very positive movement in tort reform and has the ability to prompt meaningful tort reform in many other states. However, a single expert witness who convinces a jury that a case constitutes gross negligence, even if the majority of the medical community would disagree, can nullify the risk-management benefits and legislative momentum gained. When we hear of or see such testimony, be it from the defense or plaintiff, we have an obligation to scrutinize it and act accordingly.
The above-cited case included testimony for the plaintiff from emergency physicians Peter Rosen, MD, and Steven Gabaeff, MD. Remember, if the standard of negligence in Georgia is one of gross negligence, then the testimony provided is to support the allegation that the defendant physician was grossly negligent. An argument could be made that if gross negligence is not clear, then this matter is not appropriate for advancement in the legal system, and summary judgment may be awarded. However, when it is determined that sufficient evidence exists to support the gross negligence allegation, then this may become a matter of fact and not of law. A jury deliberates matters of fact, and matters of law are decided by the court (ie, judge). In order to find sufficient evidence to pursue the question of gross negligence, qualified expert witnesses must have provided testimony to that exact fact. So the plaintiff’s experts in this case were willing to testify that the physician was grossly negligent. Although admittedly an oversimplification of the facts, the patient presented with an unusual left-sided chest pain. A history was obtained, and he was examined. Several tests (eg, electrocardiogram, chest radiograph, etc.) were ordered, and the patient improved with symptomatic treatment and was discharged. He died two weeks later from a pulmonary embolism. An ideal outcome? Of course not. A complicated case? Probably. Grossly negligent (reckless care)? Not even close.
Testimony that goes beyond what is medically certain or reasonable may result in unfair outcomes in individual cases, but more important, such testimony undermines the validity of the gross negligence standard and the clear and convincing burden of proof, thus damaging our ability to achieve meaningful tort reform nationally. All expert witnesses need to be aware of the far-reaching implications of their testimony and must read and comply with the ACEP policy “Expert Witness Guidelines for the Specialty of Emergency Medicine,” available at http://www.acep.org/Clinical—Practice-Management/Expert-Witness-Guidelines-for-the-Specialty-of-Emergency-Medicine.
Dr. Klauer is director of the Center for Emergency Medical Education and chief medical officer for Emergency Medicine Physicians, Ltd., Canton, Ohio; on the board of directors for Physicians Specialty Limited Risk Retention Group; assistant clinical professor at Michigan State University College of Osteopathic Medicine; and medical editor in chief of ACEP Now.
Dr. Stankus is an emergency physician for Group Health Physicians in Seattle; chair of the ACEP Medical Legal Committee; a former medical malpractice defense attorney; a medical legal consultant; and a member of the editorial board of ACEP Now.
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2 Responses to “Do We Need a New Standard of Proof in Medical Malpractice Cases?”
September 29, 2014
lbandrewAs the article points out, a higher standard of proof is a partial solution to the problem of marginal and spurious malpractice claims. However, as is also clearly shown, this standard can be completely subverted when “expert witnesses” ignore the standard and mislead juries by misinterpreting it in order to service their clients.
ACEP has crafted excellent expert witness policies and related ethics policies to address the problem of unethical testimony by members. However, the policies are not well publicized, and are largely ignored.
For example, renewal of membership used to carry with it an explicit promise to uphold the ethical standards of the College, including those related to expert witness testimony. Now the renewal document is simply a bill.
We have yet to provide any educational courses or materials for members on what constitutes ethical medical expert testimony. I have taught such courses in other medical specialty societies, who do deem it be important. Our members have told us they would appreciate some guidance, and we know that many do testify.
Although we have excellent procedures in place to pursue unethical experts among our members, and to clarify the actual standard of care, these are rarely utilized. (I am hopeful they may be in the cited case).
But if the problem of unethical experts from within our own ranks were not enough, we in EM are uniquely vulnerable to “experts” from other specialties who believe that they know our standard from what they may remember in an ED rotation in medical school or residency, or from what they glean as consultants to us, or they simply testify convincingly that the standard in their own specialty is the same as in ours.
It is obvious that we could do more to address this problem than simply to rail against it.
Louise B. Andrew MD JD FACEP FIFEM
October 5, 2014
benzonitDrs. Klauer and Stankus:
Thanks for a good lead-in on an important topic.
2 points:
1. Words count. We should use, in medical literature, the medical terms. So “Standard of Care” in medicine means 95%ile, the practices of Doctor’s Doctor; this is the standard-bearer.
The legal term “Standard of Care” means 50%ile, the doctor good enough for most things for most other people but not my family.
Thus, in Medical articles on legal topics, “Routine of Care” is a more precise term.
2. We (ACEP?) need to take control of the professional witness who falsely testifies. we can’t expect the individual EP to do so and the defense attorney, having been paid, has no interest in the issue and may have a conflict of interest in pursuing a perjuring doctor.
I participated recently in a case wherein someone claimed FACEP and ABEM but had neither. They proclaimed from the stand that a trauma arrest in the field had a >80% chance of survival if we’d done our jobs right.
Yes, we won, and in an hour, but this person still got paid (a lot) and is still free to present this garbage. And the judge doesn’t know he’s been lied to.
Thomas Benzoni, DO, AOBEM, FACEP
Des Moines, IA