In over twenty-five years of consulting as a pediatrics expert witness on issues for both plaintiff and defense attorneys, I have seen well over two hundred cases at all stages of the process. Having had the opportunity to follow many cases from filing, through discovery and into trial, I have learned that each case is different. Cases are started and ended, won and lost, based on the input of expert witnesses in all phases of the case. Decisions in medical malpractice cases can hinge on many issues. Not all cases with the same unfavorable outcome have occurred for the same reasons. Consequently, not all such unfavorable outcomes are found to be the result of medical malpractice or negligence. The timely input of a qualified pediatrics expert witness is crucial for determining which way to proceed in any given situation.
For example, some cases are the result of so-called “never” events–an action or event which should “never” occur. There is no acceptable explanation or excuse for giving the wrong drug or wrong dose of a medication to the wrong patient or by the wrong route. As such, many incidents of this type never make it to the filing of a malpractice case because they are settled as soon as they become known.
However, the outcomes in other cases hinge on different criteria. Much of the presentation of evidence in courtrooms centers around whether or not the care provided by the physician involved in the case met the “standard of care”. This is a term with many different interpretations. Two similar cases, with similar histories, findings and outcomes, can lead to diametrically opposite verdicts. This can be just from the basis of whether or not the “standard of care” was met.
For example, consider the allegation of failure to diagnose meningitis in a child. This is one of the more common causes of action in pediatrics. Take the hypothetical case of a ten-year-old child, who develops fever, headache, light sensitivity and neck stiffness at home. The parents call the pediatrician and relate these symptoms. One doctor has the parents bring the child immediately to the office, does a thorough history and physical examination, and finds none of the classical findings of meningitis. He also documents all of his findings and thought processes. He diagnoses a viral illness and discharges the patient home, with instructions to call if things should worsen. The child subsequently deteriorates, is hospitalized with bacterial meningitis, and suffers permanent damage or death.
In the second scenario, the parents call a different pediatrician who listens to the history. He then tells the parents that “there is a lot of this going around now,” and recommends supportive care measures at home. The child again worsens, and suffers the same injury or death.
While the outcome of these two cases is the same, the outcome of medical malpractice cases based on these scenarios may be vastly different. In pediatrics, the history of fever, headache, light sensitivity and neck stiffness should always bring to mind the possibility that one is dealing with a child with meningitis. Furthermore, once that diagnosis is entertained as a possibility, no time should be lost in performing a thorough evaluation. Especially considering that meningitis can be treated successfully if diagnosed early, but can worsen rapidly if allowed to go undiagnosed. In this case, the prompt evaluation of the child constitutes the “standard of care” for a child with these presenting symptoms.
When these cases are litigated, the defense counsel for the physician in the first case can argue that the physician met the standard of care. That is, he did everything that a prudent and attentive physician would and should do when presented with a patient with these complaints. The fact that there were no signs of meningitis present when he performed all the standard examinations should lead to the conclusion that, even though the child was eventually shown to suffer from meningitis, there were no findings which should have led the physician to make that diagnosis when the child was seen.
The second physician can be attacked by plaintiff’s counsel for failing to meet the standard of care. He either did not respond appropriately to the history he was given, and did not consider meningitis, or did not consider it strongly enough to warrant an immediate evaluation. This case is far less defensible, as it is presented here. By failing to consider meningitis, and document why it was not felt to be present, the physician has left himself open to charges that he did not even think of a condition which could have been treated had it been diagnosed early enough.
It should always be remembered that medical malpractice law does not require that the physician always be correct. That is an impossibly high bar to reach. The law only requires that the physician not have been negligent by allowing any errors of either omission or commission to occur. Bad outcomes may occur even in the face of a completely thorough and comprehensive evaluation. Moreover, bad outcomes can occur in the face of perfectly performed surgical or other procedures. What the “standard of care” concept requires, therefore, is that the physician involved shall have done everything that a prudent and careful. Just as another physician would have done in a similar situation.
Defining the ‘standard of care” is yet another area of ambiguity. In most cases, the standard referred to is the so-called “community” standard of care. This is defined as what is expected of a prudent physician in the community in which the subject incident occurred. Thus, a family physician practicing in a rural area is not held to the same standards as a specialist in a tertiary-level teaching hospital. This fact is important in the selection of expert witnesses for a case, by both the plaintiff and the defense. Just because a certain test or procedure is available 24/7 at a major medical center, and it would be a departure from the standard of care to not obtain that test or procedure immediately in that setting, does not mean that the same standards apply to the small, rural community hospital.
It is important that the experts chosen for a case are familiar with the standards in the community in question. This is important so that they can make their cases about meeting, or failing to meet, the standard of care based on the standards in that community. Standard of care may also vary between different geographical areas of the country. It is important that an expert be familiar with how medical care is delivered in the area in question. This does not rule out the use of an expert from a geographic area distant from the venue of the case in question; it only imposes another requirement and obligation on the expert and his preparation.
Another potential stumbling block for a pediatrics expert witness concerns the sources which one might use to determine the standard of care for a medical malpractice case. Clearly, an expert who practices in or near the geographic area in which the alleged malpractice occurred should have a reasonably good idea of the standards applicable to that area. However, it may not be possible to locate an expert in the discipline required from the same community as the patient and physician involved in the potential action. Therefore, the attorneys involved will need to find another method for discerning the standard of care applicable to the case. Medical literature, both textbooks and journal articles, can sometimes serve to help to define these standards. Guidelines can be promulgated by these professional societies. However, relying on material in print has many inherent weaknesses.
On many occasions an attorney will ask an expert during testimony whether the expert considers a certain publication to be “authoritative.” This publication could be a textbook, a scientific article or a set of guidelines written by a professional society. In general, no published material can be considered absolutely authoritative, for one very critical reason: the turnaround time for journal articles can stretch to months or more, and that for textbooks can extend for years, so the material they contain may well reflect concepts which are no longer current. Furthermore, articles or textbook chapters represent the opinions of one or a few authors. There are often other articles or textbooks with differing opinions.
Additionally, guidelines are almost always written with the disclaimer that they do not represent a standard of care, but rather simply are an attempt to collect the current thinking about a topic. Thus, experts are generally disinclined to accept any one reference source as “authoritative,” preferring instead to be familiar with as much of the literature as possible. These references are not likely to be the sole determination, or even a major part, of the standard of care applicable to a given case.
It is also important to remember that the standard of care is not immutable over time. When I trained in the late 1970’s, the standard of care for the diagnosis of acute appendicitis was the physical examination, usually by multiple examiners including a pediatrician and a surgeon. If appendicitis was suspected, the surgeon was expected to operate based on the clinical picture and the examination of the patient. Given that some cases can be difficult to diagnose on examination, delay in surgery was considered unwise, lest the inflamed appendix rupture and lead to a more serious infection such as peritonitis.
The other side of this situation was that sometimes the clinical picture would suggest appendicitis. However, the appendix at surgery would, in fact, be normal. A surgeon was expected to have a fraction of the appendices removed be normal; failure to have the occasional “unnecessary” appendectomy would suggest that the surgeon was waiting too long to operate, and risking serious complications. Today, however, where CT scanners are available at all hours in virtually every hospital, the standard of care seems to have evolved to require a CT be performed even before the patient is examined by a surgeon. While one may bemoan the replacement of clinical judgment by technology, the technological advancements available today can certainly make for greater diagnostic precision and accuracy.
Finally, even the best definition of standard of care can become useless if it is not clearly explained to the jury at the time of trial. In a case involving an asphyxiated newborn who was acidotic at birth, in which I was involved as a defense expert, the outcome hinged on the standard of care for management of the newborn infant’s abnormally low pH. The plaintiff’s expert, a professor of biochemistry from a major medical school, explained the acid-base balance system in great detail to the jury, describing the mathematical formulas involved in arriving at the value of the pH, which represents the concentration of acid in the blood. Because of the mathematics involved, he could–correctly–horrify the jury with the claim that when the infant’s pH was 0.3 units below normal, the infant actually had “twice as much acid in his blood as was normal–TWICE AS MUCH!”
During my direct examination, I was given the chance to explain how the pH is relevant to the care of an asphyxiated newborn. I explained to the jury that, when discussing pH and acidosis, we refer to the arbitrary pH value, and separate it from the actual acid concentration. Twice as much acid may seem like a huge difference. However, when expressed in pH units, the deviation from normal can be seen and understood without the emotional, and jury-swaying, hyperbole. The expert must know the science, and must be able to put it into terms that a lay jury can understand and deal with in deliberation.
Many medical malpractice cases depend on the determination of whether or not the physician concerned met the standard of care in the case. A pediatrics expert witness, ideally one in the same field as the physician whose care is at issue, and from a similar locale in terms of the level of medical care readily available, can help attorneys representing either side of the case to determine both what the relevant standard of care is, and whether or not it was met. This determination is critical for knowing how to proceed in any particular case.
About The Author
EXPERT WITNESS E-001149
This article was authored by an actively practicing and pediatrics board-certified expert who has been reviewing medical malpractice cases for over 25 years out of a thirty-year medical career. He has assumed several clinical roles, and obtained academic and medical degrees from some of the most prestigious institutions in the country. He is a fellow of the American Academy of Pediatrics.
BA, Honors, Princeton University
MD, Johns Hopkins School of Medicine
Residency, Pediatrics, Johns Hopkins School of Medicine
Fellowship, Neonatal-Perinatal Medicine, The University of Texas Health Sciences Center
Board Certified, Pediatrics
Member, American Academy of Pediatrics
Former, Member, Medical Executive Committee, Nyack Hospital
Former, Faculty, New City Pediatrics
Former, Faculty, Harris County Child Welfare Unit
Former, Attending Physician, Good Samaritan Hospital
Current, Pediatrician, a private practice
Current, Clinical Assistant Professor, a major medical university