The War on Doctors

|

Expert testimony in malpractice lawsuits turns out not to be very expert after all. Via Paul Hsieh of GeekPress, who is a diagnostic radiologist himself:

The study by Johns Hopkins University radiologists found that medical experts who testified on behalf of plaintiffs in asbestos suits almost always found something suspicious on their X-rays, whether it was asbestos dust or a likely malignant tumor.

But six disinterested radiologists asked to review the same 492 chest X-rays found something wrong only 4.5 percent of the time.

And people wonder why the cost of medical care has gotten so high.

Advertisement

NEXT: Fear of Beer

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. We could solve a lot problems in the contemporary tort system by just having expert witnesses appointed by the court.

    The current system is based on the idea that a lay jury can become such instant experts on any highly technical field that they can soundly choose between dueling expert witnesses. It’s totally bizarre. Nobody would want their medical care decisions (as an example) made like that before hand why should we use it to judge the quality of care afterward?

    The technical issues of a case should be thrashed out before it ever goes before a jury.

  2. Of course this article ignores the fact that defendant attorneys hire their own experts, etc.

  3. I don’t trust this story, because the source article in Nature is grossly inadequate in what it leaves out.

    Here’s one example: “Hundreds of thousands of people sue every year and billions of dollars are awarded in compensation, with disastrous effects on many of the companies involved…’More than 60 US companies have sought voluntary bankruptcy to deal with such claims.'” In one case I’m familiar with, (via the excellent book Libby, Montana) WR Grace witheld information about the deadly nature of asbestos and failed to provide protection to hundreds of employees in Libby, Montana. Hundreds of them already are dead and more are dying.

    WR Grace went “bankrupt” after playing shell games tranferring $4 billion or so in assets to spin-off corps. So now, many of its victims are shafted and taxpayers are on the hook for an mind-boggling clean-up job.

    The Seattle Post-Intelligence did a good investigative series on the story (but before the bankrupty filing): http://seattlepi.nwsource.com/uncivilaction/

  4. “And people wonder why the cost of medical care has gotten so high.”

    We’re pretending today that the answer has something to do with asbestos lawsuits, are we?

  5. Bottom line people are dumb and juries are dumber yet. All prejudices being equal any lawyer will choose the dumber juror. They are easier to sway. My mother has had the freak opportunity to sit on five juries. Her advice, chose to be tried by a judge.

  6. We’re pretending today that the answer has something to do with asbestos lawsuits, are we?

    I’m going to be charitable and assume that Hanah’s point was that doctors who want to find a problem can always find a problem and argue that it’s urgent.

    I’m not sure that this anecdote really represents a larger trend affecting health care costs, but I think that’s the point.

    Then again, I could be wrong.

  7. I had to read the article description three times before I understood that “plaintiffs in asbestos suits” did NOT mean the plaintiffs were WEARING asbestos suits!

  8. And people wonder why the cost of medical care has gotten so high.

    Wow. I never knew it was because of asbestos experts.

    I thought it was because we have a for-profit health care systm that drains money out of the system to reward shareholders and corporate execs.

    I thought it was because the pharmaceutical companies use their political muscle to enforce monopolistic drug pricing.

    I thought it was because insurance companies are not obligated to cover everyone, so that they can pick and choose only the wealthiest and healthiest.

    Thanks for enlightening me as to the real culprits.

  9. Joe,

    “We’re pretending today that the answer has something to do with asbestos lawsuits, are we?”

    No, we’re pretending that that the hired gun expert witnesses that play a central role in medical malpractice suits are corrupt frauds that lie to juries for money. The deceived juries make bad awards that the rest of us must then pay for.

  10. I thought it was because we have a for-profit health care systm that drains money out of the system to reward shareholders and corporate execs.

    Because without that “drain,” right, the money would just keep flowing around in a big perpetual motion machine, funding health care for all for free forever.

    I see. Very good.

  11. “No, we’re pretending that that the hired gun expert witnesses that play a central role in medical malpractice suits are corrupt frauds that lie to juries for money.”

    Sounds to me like some of us are pretending that only the attorneys from one side of the dispute are hiring corrupt frauds as their medical “experts.” Because we all know that defense attorneys go out of their way to hire neutral doctors and get that doctor’s unbiased opinion, rather than hiring corrupt shills who make more money saying “nope, this person wasn’t hurt, and if he does have an injury it couldn’t possibly have been the fault of the defendant” than they ever could by trying to actually, oh, say, heal the injury.

  12. I thought it was because insurance companies are not obligated to cover everyone, so that they can pick and choose only the wealthiest and healthiest.

    So if they were forced to take a loss by covering incredibly sick people who couldn’t afford large premiums, then the cost of insurance for everyone else would go down because the companies want to lose money on everyone… or something like that…maybe? Perhaps you can explain a little further, Night Owl?

  13. Contrary to your comment, this study had nothing to do with malpractice lawsuits. It’s not fair to compare asbestos suits and malpractice suits.

    The study looked at the accuracy of plaintiffs’ experts in asbestos lawsuits. Asbestos lawsuits are suits against companies that made products with asbestos in them and who owned property where asbestos was used.

    Asbestos litigation is a completely different planet from medical malpractice litigation. I defend both as an attorney. Plaintiffs’ experts in abestos cases are notoriously corrupt. If a plaintiff can get one favorable reading on an x-ray, most cases will settle quickly.

    Malpractice suits are all together different. No plaintiffs’ attorney wants a whore expert in a malpractice suit. Most juries don’t want to convict doctors. Most doctors won’t testify to just anything when the case involves another doctor as a defendant. The expert has to be top flight and reliable. These cases are very tough for the plaintiff’s side.

  14. we’re pretending that that the hired gun expert witnesses that play a central role in medical malpractice suits are corrupt frauds that lie to juries for money.

    of course, this will always be true in some cases.

    but, imo, in most cases, two “experts” sincerely see different likelihoods in the same data, or see different data as relevant. there’s no need to suppose dishonesty.

    we, culturally (maybe humanly), have a need for simple right answers. and, right or wrong, we see Science as the route to such answers.

    it is far more difficult to acknowledge that the abstractive, analytical testing we do (under the hopeful name of Science) has useful limits and much qualification — limits and qualifications that we often vastly exceed through ignorance and/or belief in Science as the route to Truth. humans, including experts, can and do misapply scientific method.

    science today, in attacking extraordinarily complex and chaotic systems with trial-and-error, control-and-variable statistical testing, may simply be up against the limits of the method in some respects. it is quite likely that large, chaotic systems cannot — not just “aren’t yet”, but inherently cannot — be well understood by humans in the real world using reductive applications of scientific method.

    moreover, the science that experts conduct or information they revere is fatally and irrevocably flawed in many ways based on the fact that scientists themselves are not predictable instrumentation but human beings. every test, every result is inherently interpreted by a human being, none of whom are scientific instruments, all of whom i suspect would not be able to replicate their interpretations of complex data systems if it were possible to run multiple independent tests for confirmation.

    that systemic error is pervasive and misunderstood (or ignored) by the layman and the scientist alike because it calls into question one of the founding tenets of our society — the inviolate nature of dispassionate scientific method to discover and understand Truth in everything, in time, if well applied. what if that isn’t true?

    this isn’t to dismiss the obvious power of scientific method. it is only to suggest that there are probably limits to what science can understand, and that we in some cases are against those limits — which means confusion and interpretation, i.e. a return to augury, now disguised as science, at the fringes.

  15. “No, we’re pretending that that the hired gun expert witnesses that play a central role in medical malpractice suits are corrupt frauds that lie to juries for money. The deceived juries make bad awards that the rest of us must then pay for.”

    So the “pretending” part comes into play when we argue as if malpractice suit costs represents a significant % of health care costs.

    BTW, The New Republic had an excellent article a couple years ago on incorporating “special masters” into the legal system to arbitrate disputes over science.

  16. So the “pretending” part comes into play when we argue as if malpractice suit costs represents a significant % of health care costs.

    I’d say it does, when malpractice insurance premiums represent a significant fraction of doctors’ incomes. The money’s got to come from somewhere. It gets passed on to the patient (insurance company), just like “corporate taxes” get passed on to the consumer. People don’t go into debt to the tune of $100,000+ on training for a career without expecting significant returns on their investments.

  17. db, you might want to compare the rate at which malpractice insurance costs are rising to the rate at which malpractice payouts are rising (or rather, not rising).

    Insurance companies are out to recoup their September 11 losses. Doctors and condominium associations, among others, have been hit hard. The rise in doctors’ insurance costs, contrary to a popular, oft repeated myth, is not happending because of malpratice lawsuits.

  18. joe,

    Even if there is a discrepancy between premiums and payouts (I don’t have the time to seek evidence to verify your claims), one could just as easily arrive at the conclusion that the insurance companies are pre-emptively raising their premiums to cover expected payouts as they can see the general overlawyering trend and its inevitable result: higher future outlays in malpractice awards.

    Of course, their clients who had claims related to 9/11 would have screamed bloody murder if the insurance companies had preemptively raised premiums in expectation of terrorist attacks, back when Osama bin Laden declared ‘war’ on the U.S., way back when.

  19. Night Owl,

    “I thought it was because we have a for-profit health care systm that drains money out of the system to reward shareholders and corporate execs.

    I thought it was because the pharmaceutical companies use their political muscle to enforce monopolistic drug pricing.

    I thought it was because insurance companies are not obligated to cover everyone, so that they can pick and choose only the wealthiest and healthiest.”

    Hate to break it to you, but you are NOT ‘thinking’ 🙂 Try to educate yourself.

  20. db,

    Joe’s ‘9/11’ losses refer not to the ‘pay out’ for 9/11 victims; but the ‘losses suffered by insurance companies from their investments in stocks’. You know insurence companies are one of the largest institutional investors in the country.

    at least that is what I think he is saying – otherwise his statement wouldn’t make sense.

  21. zorel,

    Yeah, I understand that, and perhaps I cast the losses in the wrong light, however, insurance companies being what they are, perhaps they could have taken a more careful look at the future. Of course, many industries are struggling to recover investment losses related to 9/11. Should they be demonized for trying to regain their losses?

    Certainly the insurance companies who lost money are wholly responsible for their choices to invest in areas that were vulnerable to terrorist attacks. However, it’s not unreasonable that they would seek to recoup their losses through other sources of income. Insurance consumers can certainly shop around for the best deal, anyway…

    It doesn’t change my argument that the evidence could be seen to support a completely unrelated scenario, however–that insurance companies are predicting future payouts due to malpractice suits.

  22. And people wonder why the cost of medical care has gotten so high.

    Hanah Metchis has a really warped sense of reality.

  23. Dawn O’Leary,

    “Malpractice suits are all together different”

    No, they are not. If they were, John Edwards could not have made an estimated $60 million fortune using expert testimony in cerebral palsy cases that rested on bogus science. If they were, we would not see widely varying rates of lawsuits in different medical specialties (unless you believe that obstetricians and neurosurgeon are as population particularly incompetent compared to say, podiatrist).

    Truth is, there are no checks or balances on expert testimony in the court system. If an expert lies or is just incompetent, what chances are there that they will get caught and penalized in anyway? With literally billions of dollars at stake the temptation to fudge the facts is enormous. Without any systemic check on expert testimony it is inevitable that a system based on it will become corrupt.

  24. we would not see widely varying rates of lawsuits in different medical specialties (unless you believe that obstetricians and neurosurgeon are as population particularly incompetent compared to say, podiatrist

    Shannon, although I share many of your disagreements with the tort system, certain specialties will ALWAYS have higher liability premiums, even if we implement some sensible tort reform. Say that we have a neurosurgeon and a podiatrist, and both are equally competent. Both will still make mistakes from time to time, but the neurosurgeon’s errors have the potential to cause the patient much more harm (measured in dollars).

    A podiatrist’s errors are most likely to affect the ability to walk (although obviously other errors could occur, e.g. severe side effects from medications). Although for some patients that could devastate their earning potential, a lot of people could still function with canes or wheelchairs.

    A neurosurgeon, on the other hand, could make a mistake during brain or spinal surgery that causes much more extensive damage and much more severely impairs the person’s ability to live and work.

  25. We really need to consider this in the light of asbestos litigation and table the discusssion of malpractice, which, as Dawn correctly points out, is a wholly different subject. There are literally tens of thousands of asbestos cases pending at any one time. Almost none of them will ever be tried. The system of civil justice is utterly inadequate to the task of sorting out the valid claims from the sham ones. To try them all, one at a time, would literally take centuries with current resources. So they are resolved in two ways: either they are dismissed (say because there is literally no evidence to support them or the plaintiff filed too late) or they are settled. “Settled” is a euphemism meaning the defendant pays the plaintiff and his lawyer money. In this context, to produce an expert report concluding that the plaintiff suffers from asbestos induced disease is literally to print money. Think of it: every time one of these doctors signs an expert report he creates about $6000 (according to the Rand study quoted) to be split among the plaintiff, the lawyer and the doctor. Liklihood of failure is zero. Multiply by 1000’s cases and you have quite a temptation.

  26. Shannon Love suggests that the court should appoint experts. Well, I don’t think that will work even though it might cut down the level of bullshit that exists with most litigation. The courts are over cluttered as it is and don’t want to have the burden of providing experts for med mal cases or any other kind of litigation. Experts provide their expertise for money, so they are very willing to slant their view in favor of whoever has hired them. If you’re looking for objective truth (it would be nice) you’re not going to find it in the courtroom. Yes, juries are dumb, impatient and irritable (more the latter two…which drives them to stupidity if they’re not already stupid) Even if I am not an imbecile with an IQ of 13, what do I really know about the intricacies of mesothelioma or asbestosis or a million of other things that experts baffle juries with? Tort law needs to be reformed, but does anyone really have the cojones to take on trial lawyers and cap the amount of settlements?

  27. Shannon Love wrote:

    If they were, John Edwards could not have made an estimated $60 million fortune using expert testimony in cerebral palsy cases that rested on bogus science. If they were, we would not see widely varying rates of lawsuits in different medical specialties (unless you believe that obstetricians and neurosurgeon are as population particularly incompetent compared to say, podiatrist).

    It seems possible that reduced chances of a podiatrist administering a remedy that has a chance for catastrophic consequences might produce widely varying rates of lawsuits in different medical specialties. Also, the possibility that a greater degree of error causes a lesser degree of harm in some specializations would similarly explain the phenomenon. I don’t know if these scenarios are real, but your comment suggesting that the activities of dishonest experts is the only case that could cause the discrepancy does not seem to have merit.

  28. gaius marius,

    “but, imo, in most cases, two “experts” sincerely see different likelihoods in the same data, or see different data as relevant. there’s no need to suppose dishonesty.”

    If two experts can look at the same data and honestly come to differing conclusions then we are not talking about a something that is settled science. If an expert portrays the matter as settle science then that expert is lying.

    If a idea isn’t settled science then we shouldn’t be awarding damages based on it. We shouldn’t hold people responsible for causing harm unless we have a very high degree of confidence they actually did so. Yet, the contemporary tort system lets people get successfully sued based on the completely untested hypothesize of rouge “experts” (vaccinations cause autism for example)

    The courts need to enforce strict delineations between models we know have predictive value and those that don’t. The courts should not lay juries judge whether a scientific hypothesis is valid or not.

  29. I’d like to ask Dawn (if she’d answer) if the expert witnesses for the plaintiffs are corrupt or if they are incompetent. It’s a question of quackery, and is the system stopping or encouraging quackery. If the legal system is encouraging quackery, it’s not too hard to figure that it would affect health care costs; shaking out the quacks just costs that much more when the system tries to keep them in.

  30. shannon —

    If two experts can look at the same data and honestly come to differing conclusions then we are not talking about a something that is settled science.

    i disagree — i think there’s no such thing as settled science, especially when it comes to highly complex systems (such as human health issues). it will often *appear* to many individuals in the field that a matter is “settled” — but that presumption will very frequently be shown to be not nearly as well understood as once supposed, and often outright overturned, later on. this has so many examples in the last fifty years that i’m sure you can name several.

    but, because it will often be accepted consensus that a matter has been “settled”, even when it isn’t, this:

    If an expert portrays the matter as settle science then that expert is lying.

    … is too reductive. they will really believe they are telling you the truth when they aren’t because they place too much faith in science to have come up with a truth — or to be able in any case to come up with a truth. this is a human condition.

    We shouldn’t hold people responsible for causing harm unless we have a very high degree of confidence they actually did so.

    i agree with this myself — but i think honestly that a wise person with a historically-contextualized viewpoint has to say that, even when there’s a “high degree of confidence” in science when talking about complex systems, there shouldn’t be.

    so should expert testimony be included at all? i think so. willful ignorance is of no help.

    but jurors (and judges and laymen) should be made to understand that there is a massive difference between a scientist talking about boyle’s law — and a scientist talking about the causal relationship between asbestos and cancer, or between car emissions and global warming, or between depleted uranium and human health.

  31. gaius marius,

    By settle science I mean scientific models that produce measurable predictions with the accuracy bounds of the model. If you cannot predict outcomes for a given set of predefined parameters, you do not have a scientific model you have an educated guess.

    Science is the discipline of knowing what you know and more importantly what you DO NOT know. Science is as much about mapping the bounds of our ignorance as it is discovering truths. Much of what we deal with on a day to day basis, such as clinical medical care or the economy is not well understood by science. It is fundamentally dishonest for someone to claim that it is.

    Cerebral Palsy is an excellent example of this. Nobody knows what causes CP. Nobody can take a stack of medical records for pregnancy and birth and tell you which babies ended up with CP and which did not at a rate greater than chance. But that does not stop the courts from letting “expert” witnesses ascribe the blame for the condition to something specific a doctor did or did not do during delivery.

    If we can’t predict who will or will not come to harm then we don’t understand a problem well enough to hold someone accountable for that harm. We need to make that the basis for our acceptance of science in the court room.

  32. Joe,

    You should start your own insurance company. Since you don’t have any 911 losses to recoup, you should be able to undercut all of the other companies.

  33. One thing the trial courts could do is propose to the two sides in a tort suit that they agree to an examination of the facts by experts of their choosing. This would be analogous to what is done in arbitration cases. Each side gets a list of possible arbiters, and can strike unsuitable ones. When both sides agree upon an arbiter, or a panel of the same, the “trial” can begin. This would lead to an expert or panel of experts being more credible to the jury, as they wouldn’t be “whores” to one side or the other.

    I wouldn’t require this. From time to time, a novel theory is correct, and the adversary system does have value in allowing a new idea do battle with othodoxy. But if the parties are disputing facts within the consensus of scientific theory, agreed-upon expert witnesses might speed things up and focus the proceedings.

    I once got tossed from a jury panel in a back-injury suit, because I admitted to believing that the science behind traditional medicine was superior to that behind osteopathy or chiropractic. Plaintiff was going to use an O.D. for her expert witness, it seemed. From this layman’s perspective, it looked like the court preferred jurors whose sophistication about science is at the afternoon talk show level. I kinda knew that, and really didn’t want to serve on that type of trial, so I didn’t censor myself. I suspect some other members of the panel – a nurse, especially, fibbed when asked if an M.D. was more convincing than a back-cracker. 🙂

    Kevin

  34. Science is the discipline of knowing what you know and more importantly what you DO NOT know.

    yes — and sadly, few “experts” would allow for that truth as a matter of ego, and few laymen (ie. jurors) have any feeling for that whatsoever.

  35. Doctors are not scientists.

Please to post comments

Comments are closed.