The Standard of Care

In order to prevail in a medical malpractice action, the plaintiff must show, by a preponderance of evidence standard, that the defendant owed a duty of care to the plaintiff, the defendant was negligent in providing that care, the plaintiff was injured, and the legal cause of the injuries was the negligent care. All four of these elements must be shown for the plaintiff to win.

The most compelling type of medical malpractice case is the failure to diagnose a life-threatening condition which results in the death of the patient. Myocardial infarction, aortic dissection, certain malignancies, and neurologic injuries represent these types of cases. If the provider can show that he considered these types of conditions and he took steps to make the diagnosis, then he will likely win even if the diagnosis is missed.

There are false positives and false negatives for all diagnostic tests and the courts recognize this. In general, expert testimony is needed to confirm or deny that the provider did what a reasonable provider would do if faced with the same or similar circumstances. Expert testimony is required because most people do not have the knowledge or experience needed to make decisions on standards of care by themselves. Under the law, an expert can be used to educate the trier-of-fact to better understand the evidence or determine a fact in issue.

In most states and in the federal courts, an expert witness must be qualified by knowledge, skill, experience, training, or education so that he can testify in the form of an opinion or otherwise. Before an expert is allowed to testify, the court must act as a gatekeeper to determine if the expert’s testimony will substantially assist the trier-of-fact. The factors that the court will use in making this determination are (1) whether the scientific evidence has been tested, (2) whether the evidence has been subjected to peer review and publication, (3) whether a potential rate of error of the evidence is known, (4) whether the evidence is generally accepted in the appropriate scientific community, and (5) whether the expert’s research in the applicable field has been conducted independent of the litigation. These factors come from the Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1994) holdings which relate to what an expert witness is allowed to testify about in a malpractice action.

Prior to Daubert, the federal courts used the “generally accepted” standard which originated from Frye v. United States 293 F. 1013 (D.C. Cir. 1923)In Frye, the court held that novel scientific testimony is admissible in federal courts if the testimony had been “generally accepted” in the appropriate scientific community where it had originated; expert testimony must be based on scientific methods that were reasonably used and accepted. Most states then came on board with this standard and it had been used for over 70 years.

Most states and the federal Courts have adopted the holdings of Daubert but some have not. There are still 13 states which follow the standard of Frye.The Frye standard is a much easier to meet than Daubert. The courts that use the “generally accepted” standard reason that the jury should be allowed to rule on the relevance of the testimony and there should be no prior screening by a judge.

The “standard of care” is defined by statute in most states. For example, in Tennessee, it is “the recognized standard of professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time of the alleged injury or wrongful act occurred.” Most states do not have the community standard element that is in the Tennessee statute.

In medical practice, there are many conditions which now have recommendations for care and treatment. These recommendations come from committees comprised of recognized experts in the field. I was at a lecture for continuing legal education where a well-known plaintiff’s attorney stated that, as far as he was concerned, the “best practices” paradigms recommended by these committees were now the “standards of care” and any health care provider who did not follow the paradigms was committing medical malpractice. He was wrong.

Most, if not all, of the publicized treatment recommendations have a disclaimer which recognizes that it is up to the treating clinician to decided on the proper care of a particular patient. The law has not changed; the standard of care is still the care that would be provided by a reasonable physician who is faced with the same or similar circumstances. If a reasonable clinician would not have followed the committee’s recommendations, then the standard of care may still have been met.

Here is an example where the paradigm may not be the standard of care. Under the committee recommendations, a person who presents to the hospital with an acute coronary syndrome should be given morphine, oxygen, aspirin and nitrates. According to the above mentioned plaintiff’s attorney, a person not getting all elements of this treatment regimen would be the victim of malpractice. However, physicians would not give morphine to a person with a low blood pressure or to someone who is allergic to the drug. A patient who has severe chronic obstructive pulmonary disease may stop breathing if given supplemental oxygen. A person who has gastrointestinal bleeding or is allergic to aspirin should not be given that drug. We know from TV commercials that a person on Viagra or Cialis should not take nitrates as that could lead to a sudden dangerous drop in blood pressure.

Opposing attorneys will try their best to discredit the expert witness on cross-examination and they have many weapons in their arsenal to accomplish this goal. One strategy is to let the jury know how much has already been paid to review the medical records, study deposition testimony and answers to interrogatories, and how much is being charged per hour to do the reviews, give testimony at depositions, and testify at trial. The amounts can be substantial and many professionals make a significant income performing as an expert witness. If it can be shown that a particular witness has been paid a lot of money, then the jury may conclude that his opinion is being bought; the credibility of the witness will suffer accordingly.

Although there are many other ways to attack an expert on cross-examination, one of the best is to show the jury that he may not be an expert at all. This can be done by exposing weaknesses in the expert’s curriculum vitae. A national survey of 2.6 million resumes done in 2003 showed that 41 percent lied about their work experience and 23 percent lied about their credentials or licenses. A surprising 41 percent lied about their education (Thomas A. Buckhoff, Preventing Fraud by Conducting Background Checks, CPA J., Nov. 2003). Opposing attorneys now routinely check the backgrounds of medical expert witnesses and they will even look at social media sites to see if they can find some incriminating information that can be used to attack their credibility.

If it can be shown that the medical expert was willing to embellish on his qualifications, it is logical to assume he has embellished his medical opinions, also.

There are few trial lawyers that can show superior knowledge to the expert in the medical field under discussion. After all, they are lawyers and it is unlikely they have ever treated an actual patient. Book knowledge is just not enough to be a good physician and that is probably why it is called the “practice of medicine.” By practicing, you are hopefully improving your knowledge and skill as a physician all the time.

If the physician can show he used his best clinical judgment at all times while caring for the patient, he will likely win his case even if the results were not good. Physicians are forced to make judgments, some of which do not work out well for the patient. These decisions are made with the best data available; they cannot rule out every single diagnosis or provide perfect care. The courts and the juries recognize this and will generally rule in favor of the physician who has used his best judgment and done it in a timely fashion. The physician can be his own best medical expert witness in this regard.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

You Can Have Your Cake

The United States Supreme Court will soon have a decision on Masterpiece Cakeshop v. Colorado Civil Rights Commission. The decision is one of the most anticipated in the present term of the Court as it examines the rights of creative professionals to withhold their services based on religious objections. The Court must decide based on what seems to be a conflict of free speech and free exercise of religion, both provided under the First Amendment of the Constitution, and anti-discrimination law.

The facts of the case are as follows. In July 2012, Charlie Craig and David Mullins decide to get married. It was to be a same-sex marriage which, at that time, was not recognized in Colorado. They planned to be married in Massachusetts and then have a reception at a Denver restaurant. In anticipation of the Denver reception, they went to Masterpiece Cakeshop in Lakewood Colorado where they hoped to purchase a cake designed for them by the bakery’s owner.

The bakery owner, Jack Phillips, was a self-professed cake artist who was known for his elaborate cake creations for weddings and other celebrations. He was also a devout Christian who had a history of not baking any goods for any Halloween or bachelor party (sexual in nature?) themes. Since Mr. Phillips had strong religious objections to same sex marriages, he refused to design a cake that would be part of either a wedding or a marriage. Interestingly, he was willing to make them baked goods for any shower, birthday, or other occasion that was not related to the wedding. He was also willing to sell them a cake off the shelf but he just could not participate in creating a new, unique cake for the reception itself.

Craig and Mullins filed a complaint with the Colorado Civil Rights Commission against Masterpiece Cakeshop alleging they were discriminated against based on their sexual orientation. Phillips argued that his artwork was a form of speech and he could not be compelled to participate in the expression needed to make the cake. He also argued that he could not be compelled to make a cake that would impair his free exercise of religion.

The case was first heard by an administrative judge who rejected both the free speech and free exercise of religion claims. The judge reasoned that since there was no particular design or message requested by Craig and Mullins, then there could be no free speech right to deny the request.

The original decision was confirmed on appeal to the state civil rights panel. This panel then ordered Phillips to design wedding cakes for any subsequent same-sex weddings so long as he does this for opposite-sex couples. He was also ordered to provide training for his staff in regard to the state’s anti-discrimination law.

The Colorado Court of Appeals upheld this decision stating that Phillips would not be conveying a message in support of same-sex marriage just because he was following the state’s law.

Phillips followed the ruling of the courts by choosing to stop making any wedding cakes at all. This had a significant effect on his business but it allowed him to follow his religious tenets.

Phillips appealed to the Colorado Supreme Court but they declined to hear the case. However, the Supreme Court of the United States granted a review.

The issue confronting the Court is the right of artistic individuals to create works of art that are consistent with their religious convictions. One of the main hurdles for this argument is to convince the Court that custom cakes made by a self-professed “cake artist” is truly an artistic expression. One of the amicus briefs in support of Phillips includes color photos of custom cakes made for numerous occasions. Since art is in the eye of the beholder it is hard to predict how the justices will rule on this argument.

Another brief coming from then Acting Solicitor General Jeffrey Wall argues that the First Amendment protects Phillps from having to participate in any ceremony that would violate his religious beliefs. This brief is narrowly written to include only the anti-bias law relating to same-sex marriages and is clear to exclude discrimination base on race. The brief states, “[a] state’s ‘fundamental, overriding interest’ in eliminating private racial discrimination—conduct that ‘violates deeply and widely accepted views of elementary justice’—may justify even those applications of a public accomodations law that infringes on First Amendment freedoms.”

Craig and Mullins contend that any business that makes a product and is open to the public must be willing to sell to any customer. Phillips was willing to sell any cake on display in the bakery but he was not willing to use his artistic skills to make a special one relating to the same-sex marriage.

The recent Supreme Court decision of Obergefell v. Hodges 576 U.S. (2015) held that all states must recognize and license same-sex marriages. This decision rested on the Fourteenth Amendment which the majority felt protected gay couples who were trying to get married and have those marriages recognized in all of the states. In dicta, Justice Kennedy did note that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” Will Kennedy decide that there may be a religious exception for artists who have religious convictions contrary to the written law? There is precedent for this holding in the Affordable Care Act where certain religious orders were exempted from having to provide birth control services in their mandated insurance coverage for their employees. Will the Court write in a religious exception for artists to allow them not to use their artistic skills for religious reasons?

The case is coming down as a conflict between the First and Fourteenth Amendments. Since this battle is dealing with a highly contentious social issue, I would predict that the Court will have a very narrow holding; it is likely they will rule only on a product based on artisitic expression and they may even limit it to artistic cake makers. If they are broad in their decision, then any store owner may decide to turn away customers for any reason so long as they can show that their product has some sort of artistic expression. This would likely lead to more litigation to clarify the decision.

Obergefell was a close decision with Kennedy coming down on the side of the majority. It is likely that he will be the one to cast the deciding vote in Masterpiece Cakeshop.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Apologies May Not Be Enough

Taking care of sick people can be a messy business and sometimes things don’t turn out as planned. When things go bad, the natural tendency of the physician taking care of the patient is to distance himself from the case; it is difficult to talk with the patient and the family when there is the threat of pending litigation.

Avoiding discussions of patient harm comes from the mindset that this harm is likely to result in a medical malpractice suit and it is best to not say anything that may be used for negative effect in the future, especially a statement that may be construed as admitting fault. In fact, it used to be common for malpractice insurers to encourage their physicians to “deny and defend” against any possibility of being accused of negligence in a possible lawsuit.

The thought of apologizing for a bad result was anathema; the apology may be the first indication that something has gone wrong and may be interpreted by the patient as physician negligence. Even if the apology could not be used as evidence of negligence, it may cause the patient to look for other evidence that they can use. Even without any other obvious evidence, the apology itself may be enough for the patient to file a suit and then look for other evidence during the discovery phase.

However, the lack of forthright communication may lead to anger which makes a malpractice lawsuit more likely in the long run. It is this theory that led many states to look at ways to increase physician-patient communication in hopes of decreasing the number of medical malpractice lawsuits. The goal was to resolve cases before they reached the level of litigation.

Under the theory that more physician communication may lead to a decrease in lawsuits, at least 37 states and the District of Columbia have enacted “apology laws” which encourage doctors to apologize to patients and their families whenever the patient has been harmed. Under these laws, the “apology” cannot be used as an admission of liability in any future malpractice action; these laws were meant to encourage physicians to show compassion and sympathy; when the patients saw that their physicians cared, the belief was they would be less likely to sue.

Unfortunately, the data is mixed as to whether or not the “apology laws” have led to a decrease in malpractice lawsuits. A study done by Benjamin McMichael, a postdoctoral scholar at Vanderbilt’s Owen Graduate School of Management showed, “In general, the results are not consistent with the intended effect of apology laws, as these laws do not generally reduce either the total number of claims or the number of claims that result in a lawsuit.” (Sorry Is Never Enough: The Effect of State Apology Laws on Medical Liability Risk)

There are thirty states and the District of Columbia which protect partial apologies; these are apologies that do not contain any admissions of liability for negligent actions. There are seven states that protect full apologies; these are apologies that may contain statements or expressions of fault, mistakes, and liability. The seven states which are known to protect full apologies are Washington, Colorado, Connecticut, Arizona, Georgia, South Carolina, and Vermont, and It looks like Ohio has just joined this group.

In a recent decision, the Ohio Supreme Court (Stewart v. Vivian, Slip Opinion No. 2017-Ohio-7526), held that the State’s apology law included acknowledgements that the patient’s care may have fallen below the standard of care. The Court stated, “expressing apology is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgement that the patient’s medical care fell below the standard of care.”

The case of Stewart v. Vivian, came from a lawsuit filed against Dr. Rodney Vivian after the death of Mr. Stewart’s wife. The wife had committed suicide after being admitted to a psychiatric unit at a hospital in Batavia, Ohio. Even though Mrs. Stewart was on a suicide watch, she was still able to hang herself during a period when she was not being observed. When Dr. Vivian later spoke to the family, he expressed what he claimed were statements of sorrow but the family felt the statements also expressed more than just sympathy and should be allowed into evidence as an admission of liability. Dr. Vivian denied that his statements admitted any negligence but the family was willing to testify, under oath, that he did.

The legal issue centered on whether or not Ohio’s “apology law” included an admission of fault. If the court believed that the law did not include admissions of fault, then the family would be allowed to testify on what they believed Dr. Vivian told them during his “apology.” The trial court ruled that Dr. Vivian’s apology could not be submitted in evidence even if the apology had an admission of negligence.

On the malpractice case, the trial court ruled in favor of Dr. Vivian. The family appealed claiming that the Court should have let them testify as to what they felt was conveyed in Dr. Vivian’s apology.

On appeal, the 12th District Court of Appeals held that Dr. Vivian’s statements were properly kept from the jury because the law was ambiguous and the dictionary definition of “apology” may or may not include an admission of fault. This ruling seemed to conflict with a previous ruling from the State’s Court of Appeals in the 9th District which concluded that the law did not include an “admission of fault.” (Davis v. Wooster Orthopedics & Sports Medicine, Inc.). Since there was a split at the Appellate Court level, the State Supreme Court stepped in and resolved the issue by agreeing with the Appellate Court. In Ohio, the “apology law” now includes admissions of negligence and it was proper for the trial court to keep all of Dr. Vivian’s statements of sympathy from the jury, even if negligence had been admitted.

The states that do not have any apology laws include Alaska, Nevada, New Mexico, Kansas, Minnesota, Illinois, Kentucky, Arkansas, Mississippi, Alabama, New York, and Rhode Island.

Since not all states with “apology laws” include admissions of fault, it would be wise for a physician making an apology to know which rule applies to his State. It would also be prudent for a physician expressing sympathy, condolence, or an apology, to pick his words very carefully. He should also make a note in the chart reflecting his thoughts at the time of the conversation; what the family claims they heard may be different from what the physician may claim he was trying to express; usually when there is a fact conflict like this, it is a matter for the jury to decide. Dr. Vivian was protected under his State’s law. Other physicians may not be so fortunate.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Not Enough Academic Faculty

A friend of mine who is an Assistant United States Attorney recently called me to ask for help. He was trying to get a primary care provider and was unable to find any group in town that was willing to take on new patients. I was taken aback by this request since his insurance, as a federal government employee, was probably pretty good. Fortunately, I was able to make a phone call and get him an appointment with one of the groups in town; it is one of the perks of being in practice in the community for a long period of time.

The plight of this attorney made me reflect on the increasing mismatch between the ever growing patient population coupled with the rapidly rising patient population reaching the age where health care is often needed, compared to the number of health care providers.

A recent report from the Association of American Medical Colleges entitled The Complexities of Physician Supply and Demand: Projections from 2015 to 2030, predict that there will be a shortfall in primary care providers in the range of 7,300 to 43,100 by 2030.

Projected shortfalls in non-primary care providers is even more worrisome; the range predicted is between 33,500 and 43,100 with most of the deficit accruing from the surgical subspecialties. With our current methods of training new surgeons we are only able to keep up with the attrition rate of surgeons retiring or dying. With the United States population predicted to grow about 12% between now and 2030, this will amount to about 40 million more people with no increase in the number of surgeons that can take care of them.

It can be argued that increasing the number of Nurse Practitioners and Physician Assistants can help with the patients needing primary care providers. However, these providers cannot do what surgeons do. In the population over 65, which is projected to grow by 55% by 2030, many operations are needed on an urgent or emergent basis. There may not be enough trained surgeons to meet the needs of our country. We either need to train more surgeons or admit that some patients who need surgery will not be able to get it.

I am painfully aware of how difficult it is to convince bright college students to consider medicine as a career. Even my two daughters have told me that they are just not interested in working day and night as I have done. Nor are they willing to make the sacrifices necessary to get the education and training required for the profession. It seems that many students who may have been interested in a career as a physician or other type of health care provider are now looking at careers in investment banking, law, business, or the computer sciences.

Recent data shows that the average retirement age for a surgeon has dropped to 57 years. Many explanations for this drop are being given, but the most likely reasons relate to the increased overhead costs emanating from the Affordable Care Act (ACA) coupled with the decreases in payments being given by the third party payers. There comes a point where the hard work of being a physician just does not seem to be worth the income earned. Of course, there are many non-financial rewards of helping someone who is sick, but these rewards are not be enough to pay the bills of staying in practice and raising a family.

Another recent survey from the Association of Academic Health Centers (AAHC) revealed that impending faculty shortages may lead to a crisis in training the next generation of health care providers. Without enough teachers, there will not be enough trained health professionals to take care of the patients flooding the system. This will add to the impending shorages described above.

The influx of “Baby Boomer” patients is not the only problem. A recent article in the Wall Street Journal (WSJ November 21, 2017, VA Chief Wants More Private Health Care) describes a new strategy where veterans will be allowed to seek care in the private sector instead of using the VA’s hospital system. This may lead to 10 million more patients seeking care in an already over-stressed system where getting an appointment to see a provider is already very difficult. There is no data to show that VA physicians will migrate to the private sector to help ameliorate the shortage in providers.

There are several reasons which may account for this lack of faculty. First, the level of interest in academic careers is decreasing among those who are now entering the health professions. There are significant disparities between the salaries of those who go into private practice, industry, and academics. The cost of getting a medical education is high and the debt facing recent graduates is a driver to choose a private practice career instead of an academic one. The average debt for a graduating medical student in 2015 was $180,000!

Of those who participated in the AAHC survey, 20% reported that they will have to make changes in their training programs in order to make ends meet. There will be fewer training programs for radiology, rehabilitation medicine, allergy, pediatric pulmonary medicine, anatomy, and pharmacology. There will also be cut-backs in medical school class size and other residency training programs. Of all the strategies listed by the survey participants, “limiting student enrollment” was most often cited.

Of major concern, a decrease in nursing school enrollment was listed most often as the area where cutbacks in enrollment would be made. In a hospital setting, you have to have the nurses to take care of the patients. Physicians cannot admit patients to beds that are not staffed by nurses.

It is clear that we need to train more health care providers if we are to adequately care for the anticipated rise in the number of patients needing care. It is also clear that we just do not have enough teachers to adequately train the people looking to go into health care as a profession.

Hiring physicians from other countries is an option, but steps will need to be taken to assure that those providers have the education, knowledge, and training that we have grown to expect in our system.

Since most of the training of the health care work force is dependent on funding from the government, there needs to be ongoing communication from the schools and the government to come up with a strategy to build and sustain our health care educational pipeline. This is a national interest and yet, not much is being written about it in the national press. It is time for this pending crisis to be brought forth in the public arena so that our children and their children will not be left with too few physicians, nurses, and other ancillary health care personnel to take care of them when they need it. This problem will not be fixed overnight.


by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016.