June 1997
Volume 61 |
Number 6
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| The Expert Witness:
Insights From the Closed Claims Project |
Robert A. Caplan, M.D., Chair
Karen L. Posner, Ph.D.
Committee on Professional Liability
The "expert witness problem" is a recurrent concern
for members of ASA. Anesthesiologists who have been sued for malpractice
are frequently bewildered and sometimes emotionally devastated
by plaintiff's experts, who render testimony that seems inconsistent
with the clinical events or prevailing standards of care. Many
practitioners worry that the ready availability of "experts"
whose primary motivation is financial gain creates an environment
in which plaintiffs' attorneys can pursue and win malpractice
lawsuits that have little or no merit.
Long-standing Concerns
Over the past decade, the Committee on Professional Liability
has actively explored the expert witness problem. An early attempt
involved the Expert Witness Subcommittee, which solicited examples
of expert testimony that defendant anesthesiologists and their
lawyers considered "outrageous." This approach faltered
in several ways. First, the subcommittee was not often convinced
that the submitted examples were outrageous or entirely lacking
in merit.
In a related attempt, the Committee on Professional Liability
sponsored a presentation and open discussion of purportedly outrageous
testimony at an ASA Annual Meeting. This event left many participants
with the sense that after-the-fact criticism of expert testimony
was highly subjective and dependent on factors that were difficult
to assess simply on the basis of recorded testimony.
Finally, a preliminary plan to publish examples of outrageous
testimony in the ASA NEWSLETTER was put aside after legal
counsel pointed out that this effort might be very time-consuming,
expensive and a potential source of liability for ASA.
Fresh Insights From Closed Claims
In view of these difficulties, the Committee on Professional
Liability took a fresh approach to the study of expert testimony
by turning to the resources of its Closed Claims Project. The
Closed Claims Project (one of the principal activities of the
Committee on Professional Liability) consists of a standardized
collection of detailed case summaries of closed malpractice claims,
retrieved from the files of more than 35 U.S. insurance carriers.
In aggregate, these carriers provide malpractice insurance for
approximately half of the country's practicing anesthesiologists.
More than 4,000 claims have been collected since 1985, creating
a large and unique database for the study of professional liability.
In 1991, the Closed Claims Project database was used to explore
the possibility that the opinions of experts may be influenced
by the severity of patient injury. The specific goal was to determine
whether severe injuries were more likely than minor injuries to
predispose medical experts toward harsh judgments about the appropriateness
of anesthesia care.
To study this question in a rigorous manner, 112 practicing anesthesiologists
were recruited to judge the appropriateness of anesthesia care
using 21 case summaries selected from the Closed Claims Project
database. About one-half of the cases had temporary injuries and
one-half had permanent injuries or death. For each case, a matching
but "fictitious" version was created that was identical
in every detail to the original case except that a plausible outcome
of opposite severity was substituted. The original and fictitious
cases were divided randomly into two sets and assigned to the
volunteer reviewers, who were unaware of the intent of the study.
The reviewers were asked to independently rate the appropriateness
of anesthesia care in each case, based upon the conventional yardstick
of reasonable and prudent practice applicable to the year the
event occurred.
How did the ratings of appropriateness of care differ between
the original and fictitious cases, which differed only in the
severity of injury? The proportion of ratings for appropriate
care decreased by 31 percentage points (from 67 percent to 36
percent) when the case outcome was changed from a temporary injury
to a permanent injury. Conversely, the proportion of ratings for
less-than-appropriate care increased by 28 percentage points (from
28 percent to 56 percent) when the case outcome was changed from
temporary to permanent injury. These findings indicate that the
severity of injury can have a substantial impact on a reviewer's
assessment of the appropriateness of care.
Sincere and Well-Intentioned Experts
This is a worrisome observation, because the tendency to associate
severe injury with less-than-appropriate care suggests that the
objectivity of a well-intentioned expert witness can be affected
by the outcome of the case. These findings also suggest that the
presence of a severe injury, by itself, increases the likelihood
that a plaintiff will be able to find support from an expert witness.
A subsequent study from the Closed Claims Project provided additional
insight into sources of divergent opinions among medical experts.
Using actual case files and records from medical malpractice proceedings,
pairs of Closed Claims Project anesthesiologist-reviewers were
asked to independently evaluate sets of randomly selected claims
during their data collection visits to insurance companies. Again,
the reviewers in this study used the criteria of "a reasonable
and prudent practitioner" to assess the appropriateness of
anesthesia care.
Overall, the reviewer-pairs examined 103 claim files. They agreed
on appropriateness of care in 62 percent of cases and disagreed
in 38 percent of cases. This finding must be tempered by the statistical
expectation that the reviewers would be expected to agree in 40
percent of the cases simply by chance. Although the reviewers
agreed more often than would be expected if they had simply flipped
a coin, the level of agreement was only in the poor-to-good range
when chance agreement was taken into account.
These observations indicate that neutral experts (the reviews
were conducted in a setting that did not involve advocacy or financial
compensation) commonly disagree in their assessments when using
the accepted standard of reasonable and prudent care. From a practical
standpoint, this study suggests that opposing opinions may be
easy to find by consulting multiple experts. Although attorneys
may sometimes resort to the services of "liars-for-hire,"
the results of this study suggest that supportive experts can
often be found simply by "witness-shopping" within a
pool of physicians whose behaviors are usually regarded as sincere
and well-intentioned.
What Can Be Done?
Case review is such a complex activity that we are unlikely to
find any rapid or dramatic remedies for the variability of expert
opinion. A simple and practical counterbalance to the biasing
effect of severity of injury might be achieved if each reviewer
considered how his or her opinions in a given case might differ
if no injury occurred, or if the patient sustained a very severe
outcome. This mental exercise might lead to more objective assessments
of care.
Another potential remedy is the pursuit of explicit rather
than implicit criteria for case review. Implicit
criteria are based upon personal, subjective and unstated tests
or measures that are applied by the individual reviewer. In contrast,
explicit criteria are predefined tests or measures that are agreed
upon and specified before the process of review begins. Implicit
criteria are generally associated with much poorer agreement than
explicit criteria. Unfortunately, explicit criteria are often
difficult to create, especially for complex activities such as
the delivery of anesthesia care. A workable approximation of explicit
criteria may be achieved by using a well-defined process for expert
review. If experts utilized a logical and structured sequence
of steps in the course of case review, variation in expert opinion
might be reduced.
The Committee on Professional Liability maintains a keen and
ongoing interest in the problems of expert testimony. At the present
time, the committee is reviewing the existing ASA "Guidelines
for Expert Witness Qualifications and Testimony" to determine
whether modifications are needed. Comments, ideas and suggestions
from the membership of ASA are always welcome.
References are available on request from the authors.
Robert A. Caplan, M.D., is Staff Anesthesiologist
at the Virginia Mason Medical Center and Clinical Professor of
Anesthesiology at the University of Washington School of Medicine,
Seattle, Washington.
Karen L. Posner, Ph.D., is Research Associate
Professor in the Department of Anesthesiology and Department of
Anthropology (adjunct), University of Washington, Seattle, Washington.
She is the Project Manager and a Health Systems Analyst for the
ASA Closed Claims Project.
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