Tuesday, July 29, 2003

I watched with great interest the serve-and-volley in Medrants last week about the (in)ability of a lay jury to comprehend and judge complex medical testimony. DB lauds an editorial in the New York Times by Phillip Howard about the need to remove the jury from medical malpractice trials due to the complexity of the information. I agree completely. Just for more tiresome review I would like to provide my commentary on how a panel of experts can provide a more reasoned result than a jury by examining the four components of a medical malpractice suit:
DUTY: Pretty much a wash here
BREACH OF CARE: Sometimes a jury has trouble separating a complication (which all procedures have) from a breach of the standard of care. In the cardiac cath case used in the discussion, a known and quantifiable complication of the procedure occurred. The discussion of such complications occurs when informed consent is obtained. The benefits of the intervention outweighed the risk of potential complication. Concerning the use of Mucomyst to decrease the risk a panel of experts could judge (rightly in my opinion) that use of this medication was not the standard of care. The jury, however, could latch on to the fact that this could have helped and avoided the renal failure. A panel having "walked a mile in their shoes" could recognize that despite great efforts on the part of a physician that bad outcomes can and will happen.
CAUSE: A panel would be less likely to be swayed by an expert's attempt to show flimsy causation or proximity of harm. The panel would be able to take into account the plaintiff's pre-morbid conditions and establish their contribution to the bad outcome. (You can't make chicken salad out of chicken ----)
HARM: Again, a panel could provide an objective look as to the level of harm. If the patient in the example only required IVF's, Lasix, and a longer hospital stay then little or no harm was done. If the patient required dialysis (and was exposed to the complications associated with it) then a greater level of harm has occurred. The panel could also examine the relation of the harm to any benefit obtained. If the cardiac cath found correctable disease, which could have led to MI or death if not discovered, does that benefit outweigh the harm done?
An example: A surgeon performing a lap appendectomy on a patient injures the iliac artery. The patient is opened and the artery repaired without difficulty. During exploration a carcinoid tumor is discovered and excised. The surgeon was sued for the artery injury. Did the good in this outweigh the harm?
An expert panel would help to eliminate the possibility of a jury's emotions clouding or outweighing the facts. The facts can exonerate the physician defendant but the jury sees harm and feels "someone should pay". That person is the physician.
The establishment of a "standard of care" is based on research and experience. A jury of laypeople does not have the experience necessary to establish what consists a standard.
More later....

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