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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Outdated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