Doubt is not evidence to the contrary!

October 17, 2011 in Medical Legal by RangelMD

Continuing the discussion from the previous post about the fact that in civil trials, all the plaintiff needs is to present a “preponderance of the evidence” in order to win a case .  Legal scholars equate this to at least 51% of the evidence or in lay-terms it being more likely than not that the plaintiff is correct. But this leaves 49% doubt as to the validity of the plaintiff’s claims. In a straight forward civil case a preponderance of the evidence is likely simple enough (“you ran a red light and hit my car!”) but medical malpractice cases usually deal with very complex details that are quite different from the real world experiences of the average juror (often picked specifically for their lack of knowledge and experience in modern health care).  This enormous amount of latitude in civil cases gives plaintiff’s attorneys a lot of opportunities to game the system.

A colleague recently told me about a case that perfectly exemplifies this problem. When he was in medical training he was directly involved in a case of an older gentleman who presented to the ER department complaining of vomiting blood.  The medical attending and training staff evaluated the patient and explained to him that he would need to be admitted to the ICU for an emergency endoscopy of the upper gastrointestinal tract. Upon hearing this the patient refused and signed a form in which he acknowledged that he was leaving against medical advice and may die as a result of his illness.  About 2 months later the patient died. My colleague doesn’t even know the eventual cause of death but 2  months seems like an amazingly long time to die from massive blood loss (as any service member or trauma specialist will attest to). The family sued the attending attending’s malpractice insurance company for several million dollars.

On the surface this case appears to be straight forward. The patient was notified that he had a serious condition that may lead to death but he declined treatment and left anyway.  Physicians don’t have the legal right to force a competent patient to get treatment against their will. But ah! The key word here is “competent” and sure enough the plaintiff’s lawyers used a technicality to question whether the patient was competent to decline treatment. Apparently a blood glucose level was not obtained in the ER (an unusual claim as this is a basic lab test done on almost all patients) and so they raised the question of whether the patient was hypoglycemic (low blood glucose level) and so not competent to make treatment decisions.

Never mind that the patient was not diabetic, was not taking diabetic medications or insulin to lower his blood sugar levels, was documented in the physician, RN, and ER notes as having a normal neuro-psych exam, any doubts about his competency were not raised by his family, and hypoglycemia severe enough to degrade a patient’s cognitive abilities is not subtle and is easily recognized by such symptoms as shaking, tremulousness, nausea, vomiting, dizziness, confusion, lethargy, and even coma.  The lack of any corroborating evidence makes the likelihood that this patient had any hypoglycemia to be extremely remote and should have made irrelevant the issue of the blood glucose level not having been taken.

The problem is that a laboratory analyzed blood glucose level is the gold standard for diagnosing or excluding hypoglycemia.  Without this level there could not be 100% assurance that the patient was not hypoglycemic and so there would have been some doubt, no matter how small, about the patient’s competence.  The right lawyer could have convinced a jury to view this doubt as evidence to the contrary about the patient’s competence. The plaintiff could have won this case based on a LACK of evidence rather then a preponderance of the evidence. It is likely that the threat of this doubt based on the technicality of a test not performed is what lead the defense to settle out of court for over $900,000.

Why settle when the plaintiff’s claims don’t match the evidence and historically the majority of medical malpractice cases that do go to trial are decided in favor of the defendant? It’s a simple cost and risk adjustment on the part of the insurance company. Going to trial dramatically increases the legal costs regardless of victory or defeat (the benefit to the plaintiffs for not having any form of English Rule in this country). Juries made up of non-medical experts are notoriously difficult to predict and rule in favor of the plaintiff in about 1/3 of cases. With several million at stake the insurance company estimated how much it would have to spend on a trial regardless of the outcome and made an offer to limit their potential losses.

This is how the litigation game is played in this country. Two sides maneuver, bump heads, match wits, and play a game of chicken until someone blinks. What about truth and justice? Forget it. Those are for superheros.

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