Maryland Injury Law Center

The Georgia Supreme Court recently ruled in Condra v. Atlanta Orthopaedic Group on an interesting issue in medical malpractice cases: can the standard-of-care medical expert be subject to cross-examination about what the expert would have done if the doctor had treated the patient?

(If you are not interested in the nuance of the facts, skip the next two paragraphs to cut to the chase.) Plaintiff went to an ortho for back, neck and arm pain. The ortho prescribed a 30-day regimen of the anti-convulsive drug Tegretol, which was followed by another 30-day regimen when the patient failed to improve. During the second regimen, Plaintiff experienced leg cramps and shortness of breath. Ultimately, she was diagnosed with aplastic anemia, an awful bone marrow disease where the bone marrow does not produce sufficient red blood cells, requiring many a bone marrow transplant. (Marie Curie was thought to have died because of aplastic anemia.) Plaintiff’s lawsuit against her doctor, who belongs to a huge Atlanta orthopedic practice, alleged that Tegretol was the wrong drug to prescribe and that the doctor should have monitored Plaintiff’s blood count during the Tegretol therapy. Had he done so, according to Plaintiff, they could have avoided this terrible disease.

The doctors’ experts admitted that there is medical literature to support blood count monitoring during Tegretol therapy as appropriate but weaseled out by arguing that it was not “mandatory or essential” even though it was both experts’ regular practice. They also fought the doctor’s malpractice lawyer’s favorite alternative argument: it would not have made a difference if he had done what the Plaintiff’s experts said should have been done because blood monitoring would not have detected aplastic anemia.

The key point on appeal was whether the defendant’s experts could be cross-examined on the fact that it was their practice to do the very thing that they testified was not a breach of the standard of care. So the defendant doctor’s expert says in the deposition, “Sure, I do what you say the doctor should have done in this case but the standard of care does not require it.”
The point here is not subtle: Plaintiffs’ lawyers want the jury to conclude that if the defendant’s experts are taking the same precaution that they claim is above and beyond the standard of care, it underscores what the real standard of care is. Think about it. If a doctor testifies that the defendant’s failure to take a precaution conforms with the “acceptable standard of care”, the credibility of that doctor’s testimony is severely diminished if the medical expert concedes on cross-examination that he/she does exactly what the plaintiff contends should have been done.

No one can argue that the standard of care cannot be established by what the defense expert does. But while the expert’s personal practices may not establish the standard of care, if even the doctors selected by the defendant’s malpractice lawyer are doing what the plaintiff says should have been done, it is powerful evidence. This is true in the actual world where most doctors’ opinions about the standard of care are not based on real data but what the doctor believes is—or should be – the standard of care. Continue reading

The new popular wisdom that gained currency last year is that doctors who apologize for their mistakes are less likely to face a medical malpractice lawsuit than doctors who refuse to come clean. This supports what medical malpractice lawyers have long claimed: patients are often most angered by concealment of the malpractice and the concern that it will happen again to another patient.

KevinMD reports today an even more updated conventional wisdom, citing a study presented in the Journal of General Internal Medicine that says there is likely no correlation between a patient’s intent to bring a medical malpractice lawsuit and whether the doctor apologized.

I question the study’s methodology, which relied on videos of actors pretending to be doctors with people trying to put themselves in the shoes of malpractice victims. A controlled study like this really takes the emotion out of a case and ignores the powerful dynamics of a relationship between a doctor and a patient (and the abject suffering experienced by most medical malpractice plaintiffs). You can’t believe the manufacturer in a “make-believe” study and expect meaningful data that translates to the actual world.

I had a great morning. I arrived excited and ready to attack the day. This was the email in my in-box:

Let’s start with the petty. We have a guy whose email address is his job as an emergency room doctor. Proves nothing. But it makes you wonder if Dr. Hossfeld is just a little too excited about being Mr. Doctor. People like that scare me. I’m not a fan of summarizing my life in an email address or a bumper sticker. If I did, it would have the names of my family and friends on it and that would be too long to type.

Let’s move on from the petty to the substantive because I could read too much into an email address. We have four sentences, so let’s break them down and over analyze them to get ready for the NFL pre-game shows on Sunday. We will leave out the “hysterical laughter at every attempt at a joke from everyone in the studio” part: Continue reading