Clinical trials (by jury!)

Malpractice litigation has a substantial social cost. The costs of both failed and successfully defended malpractice claims, which include insurance cover costs and direct and indirect losses to all parties, are huge. These costs are eventually written into the costs of healthcare via insurance premiums and other less obvious routes. Many capable and highly skilled people have been driven from (or have been excluded from) medical practice and some of the best candidates for future medical training have been dissuaded, because of the risks of malpractice, from entering the profession. Some geographical areas now have n0 obsteric or neurosurgical  services because of a fear of litigation.

Malpractice litigation gives scope for considerable error, reflecting the errors of judgement by the courts. This is not surprising, when a medical layman (the judge or equivalent) attempts to become an expert-for-the day, without the depth of experience necessary to make medial judgements.

Good medical judgements are exquisitely fine, and require considerable experience of the biological complexities and vagaries along with the contextual variability, as evolved by the best professional brains.

Although it will be argued that the Courts are assisted by expert witnesses and other advisors, the very complexities of the science presented to the Courts can be un-sortable by the layman. Therefore errors of the Courts are not surprising. (See Death of the Expert Witness, New Scientist,)

A further variable is when the expert witness proves to be not so expert. Some experts have been known to have agendas of their own, for a variety of reasons. These experts can be intelligent, personable and persuasive in skewing evidence in the promotion of their goal.

Is the legal process not one of checking and balancing? Is the adversarial not countered by a legal defence? Not always, or perhaps seldom, in the medical field. One reason is that the checks and balances are themselves controlled by lawyers, also laypeople in these medical contests, and prone to make the same assumptions and mistakes. This is illustrated by the lawyer who was wrongly convicted of killing her child.

Surely, one might ask, the greater body of medical science would see through the un-objective or biased judgement?

Again this is not assured. There is reluctance of knowing medical people to enter the arena. The broad assumption is that the Courts’ opinions are good, and those who go into contest with the courts are not popular. This risk is enhanced by the Courts’ resistance to challenge, with the weapon of Contempt of Court to reinforce this. Even the knowledgeable and concerned medical authority might believe that the legal field is too complex to contest. It is simply too dangerous a field to tread for many of those who become aware of improper judgements.

Miscarriages of medical-legal judgements have been illustrated in recent years by the (usually extremely tardy) reversal of judgements, with the realisation that there have been many victims of wrong legal judgements. As a result some of the finest researchers and practitioners have been wrongly imprisoned, or exclude from their professions – perhaps for the greater part of their professional lives. Who knows how many have never been exonerated?

But there is another less obvious cost. This is the determination by law courts, by their judgements, as to what constitutes medical best practice. Once a Court rules that a particular form of treatment is “best medical practice”, or condemns a particular medical path, it would be a foolhardy physician who would not follow that treatment protocol. Thus a form of medical practice can be established, and gain a following, regardless of its true medical merits, perhaps (with a parodoxical irony) perpetuating a malpractice.

http://www.newscientist.com/article/mg15621070.100-editorial–death-of-an-expert-witness–louise-woodward-wasnt-the-only-one-on-trial-in-that-massachusetts-courtroom.html