Scientific Evidence in Med-Mal

But first, a story

Evidence in Medicine

“To study the phenomena of disease without books is to

sail an uncharted sea, while to study books without patients

is not to go to sea at all.”

William Osler

1901

A Tsunami of Studies

50 million scholarly studies in existence

2.5 million new medical articles per year

Number of new citations

Types of Evidence

Expert Opinion

Textbooks

“Merit Badge” Courses

Quality Measures

Medical Literature

– Hierarchy of Evidence

Clinical Policies

Expert Opinion

Dueling Experts

– “He said-she said”

Impressiveness

– Size of their CV

“Theater of the Courtroom”

Tuning the System

My “Blind” Dream

Expert “blind” to client

– Does not know who is paying bill

Expert “blind” to outcome

– No pre-records conference

Expert reads records in order

– Autopsy or Disability statement last

ACEP Expert Guidelines

Licensed

Certified

Active clinical practice

– At least 3 years preceding occurrence

“Current experience”

– “Ongoing knowledge”

Full guidelines– https://www.acep.org/patient-care/policy-statements/expert-witness-guidelines-for-the-specialty-of-

emergency-medicine/#sm.001caohk6snbe99109i1xqmybtwoa

Censuring Experts

ACEP

– Peter Rosen

– “could deter other emergency physicians from testifying for plaintiffs in malpractice suits”

AAEM

– “Remarkable Testimony” website

The ID Expert

Time to antibiotics in meningitis

– 30 minutes

Retrospective review

– Average time to Abx

2.7 hours

What is the Standard?

– Best Practice

– Reality

“Reasonable” Standard

No one wants “Adequate” care

Standard of

– Minimal acceptable care

Can SOC be Misdiagnosis?

– 40% of all aortic dissections initially

misdiagnosed

Doctor

What do they call someone who graduates last in their

medical school class?

TEXTBOOKS

Outdated

– By the time they are published

Basically just opinions

Not written with litigation in mind

Nothing is “authoritative”

“Merit Badge” Courses

ACLS, APLS, PALS, ATLS

Often years behind current literature

Entrenched

– ACLS and adrenaline

Composition of Experts

Quality Measures

“We’re from the government”

– “And we’re here to help”

Intentions are good

– Unintended consequences

Pneumonia QM

EBM

Evidence-Based Medicine

EBM vs “Junk Science”

Daubert Standard

– Admissibility of expert testimony

– Relevance and reliability

– Scientific knowledge = scientific

method/methodology

Generally accepted in the scientific community

Levels of Evidence Pyramid created by Andy Puro, September 2014

Clinical Guidelines

‘Guidelines are a convenient way of packaging evidence and presenting recommendations to healthcare decision makers’2

‘Clinical guidelines are statements that include recommendations intended to optimize patient care that are informed by a systematic review of evidence and an assessment of the benefits and harms of alternative care options’ 1

Which Clinical Policy?

1990

– 73 clinical guidelines Pubmed

2012

– 7,500 new clinical guidelines

Clinical Policies/Guidelines

Practice Guidelines

Shorter LOS, lower cost?

Often focused

Variable quality

Practice Guidelines

Year of the guideline

– Before or after incident

Has it been updated?

Who Endorsed?

Industry sponsorship?

National Guideline Clearinghouse

Public resource

AHRQ

Database of evidence-based clinical practice guidelines

Has been defunded

– No new content

– Off line as of this summer

Best Use of Guidelines

Specialty specific

Evidence-based process

Does the guideline apply?

Written/Updated shortly before

incident?

What’s New in Medical Decision-Making?

But First….

another story

Shared Decision Making

Patient-Centric Model

Emphasis on

– Patient engagement

– Collaboration with clinician

– Understanding choices

– Incorporating personal values

Often Involves Graphics

Impact on Malpractice

Always good to share information

Always good to incorporate pt values

Theoretically less likely to sue?

Impact on malpractice unclear

Choosing Wisely

Lead by ABIM

Decrease overutilization

– Reduce waste

Increase doctor-patient communication

Critics say - Health Care Rationing

ACEP Choosing Wisely

CT for Head Trauma Foley Catheter Use Palliative Care Wound Cultures in SSTI Oral rehydration CT in Syncope evaluation PE workup; PERC, d-dime Spine films in LBP Abx use sinusitis Renal colic US vs CT

Choosing Wisely and MedMal

Slow adoption

– Malpractice Concerns

No guarantee against lawsuit

Language often vague

– “Routine”

– “Uncomplicated”

– “Low risk”

So where does this leave us?

EVIDENCE-BASED MEDICINE

EMINENCE-BASED MEDICINE

But if you really want to impress the jury

AND HEMORRHOIDS FOR A LOOK OF CONCERN

GREY HAIR FOR A LOOK OF WISDOM