Implicit case review

Abstract

Medical malpractice in the United States is unfortunately based upon an adversarial system of case review. Medical experts for plaintiff and defense are recruited to testify based on review of the same objective clinical data but they usually arrive at different conclusions with regard to the “standard of care”. Despite the critical role for these medical experts in these cases there has been little study of the reliability, reproducibility, and validity of this method. Margo1Margo C.E. Peer and expert opinion and the reliability of implicit case review.Ophthalmology. 2002; 109: 614-618Abstract Full Text Full Text PDF PubMed Scopus (9) Google Scholar compared inter-rater and inter-group agreement in judging compliance with the standard of care using an implicit case review process. He reported that unstructured implicit review was not a reliable method and recommended that a more explicit format based on established clinical guidelines might be more valid. Over the past several years, I have served as an expert witness for both sides. Most of the cases center around four questions: 1)Did the medical providers meet their obligation in the evaluation of the patient?2)If there was a sin of commission or omission did this result directly and causally in a harm to the patient?3)Would earlier diagnosis and treatment have made a difference?4)Was the harm that the patient suffered significant? In other words, there is more to being a medical expert than determining the standard of care and there is more to malpractice than simply a breach of that standard. It has been my experience that this term (standard of care) has little meaning to clinicians and published guidelines and the literature usually do not directly address the issue of a standard of care. I believe that existing published clinical guidelines have only been useful for defining egregious acts of malpractice. It has also been my experience that these cases of clear medical error rarely make it to court and are usually settled outright. In addition, cases with clearly documented and good quality care but with nonforseable, nonpreventable, or negative but expected outcomes also end up being dismissed or settled. It is the ambiguous cases that often are the setting for the battle of the experts. I would think that these more complex cases would be difficult to subject to an explicit review process. In addition, there are situations where there is a breach that can be defined by explicit criteria but the case review finds no malpractice based upon more subjective criteria. For example: 1)If there was a breach of the standard of care but it did not result directly in a harm (e.g. no intraocular pressure measurement taken in a patient but the patient had an unrelated corneal abrasion)2)If there was a breach that led to an insignificant harm (e.g. the patient was dilated with cyclopentolate instead of tropicamide but it wore off after a few days without sequelae)3)If there was a breach but it made no difference in the final outcome (e.g. failure to diagnose a malignant brain tumor that is ultimately diagnosed 2 weeks later) It is in these situations that explicit guidelines are not generally available and implicit review is usually necessary based upon reviewer experience and expertise. It seemed to me from Dr. Margo’s data in Table 2 that the concordance rate for specialists reviewing the case was relatively good (at least for case 1). The author points out that inter-rater disagreement in implicit review might represent reviewer bias, tendency to judge more harshly if a serious adverse outcome or permanent disability occurred, or if there is lack of clear conclusive evidence on efficacy of therapy. In my consulting experience these are precisely the issues that are least amenable to explicit review criteria. The reliability of the unstructured implicit review in the reported cases was judged to be poor but I wonder if Dr. Margo could comment on the following questions: 1.What was the “gold standard” answer (by explicit criteria) if any for these two cases?2.If explicit criteria were applied to the cases would the physician reviewers still have discordant results?3.Would the concordance rate for an implicit review be higher if example cases that were or were not clearly malpractice (by explicit criteria) were used rather than cases that could be interpreted either way? I think that the authors work raises important and fascinating questions and I commend Dr. Margo for his efforts in this area. Author replyOphthalmologyVol. 110Issue 6Preview Full-Text PDF