The Medical “Expert” Problem

By Gerrit Van Wyk.


Sidney Dekker wrote about a nurse who was criminally charged after accidently injecting epidural pain medication intravenously, after which the patient died. A hospital review found she removed the drugs from a locked cupboard without authorization, didn’t scan a barcode, disregarded a label on the bag, injected the drug too fast, and acted unprofessionally.

It disregarded the fact that due to a nursing shortage she volunteered for an extra shift, and had only 4 hours sleep over 37 hours, causing a loss of situational awareness, there was no way to communicate management plans to nurses preparing a patient for epidural pain treatment, no clear guidelines for preparing the patient, no policies for preventing staff fatigue, intravenous and epidural tubing were interchangeable due to an earlier cost saving decision by management, and the bar scanning technology didn’t work properly.

A scapegoat is a goat carrying everyone’s sins and released into the wild to die. The nurse became the scapegoat for a complex socio-technical mess. It meant everyone else’s decisions contributing to the tragedy was conveniently ignored, and she was made to carry their sins. Scapegoating often depends on evidence provided by “expert” witnesses.

An expert witness in law is supposed to be an agent helping organizations understand and make decisions about complex cases. It assumes the expert will be independent of whoever appointed it, and will testify honestly and accurately. In theory, the expert is knowledgeable, objective, honest and impartial.

Many claims cannot proceed without expert advice. Once the expert evidence is rendered, the defendant is on the defensive and facts no longer matter, only the expert evidence, which is why most such cases are then settled.

In true clockwork fashion, the American Medical Association (AMA) has a tick list for the expert function and a witness policy, as if experts, like toy soldiers, are all the same. Social reality is much more complex. In practice, experts are hired because they deliver, they know the legal or regulatory process, and come across well in court. Note expertise is nowhere on the list, hence “expert” reports vary wildly, and expert testimonies are often inaccurate, untrue, or ill-informed.

Physicians often provide testimony outside their field of expertise. Just because you are a qualified physician doesn’t qualify you as an expert, and the Dunning-Kruger rule rules; “experts” often overestimate the limits of their expertise. They often pass judgment despite not having all or inaccurate facts, make their own standard the standard of care for the defendant and everyone else, and hold the defendant to a higher standard than the legal concept of the reasonable person. Experts show bias, some get their income from expert testimony, and they have no accountability for or auditing of their mistakes.

In short, there is a big gap between the AMA’s idealized version of expertise and the social reality where it plays out.

Physicians in general disagree about standards of care and even managing the same case, and so do experts. They seldom agree about malpractice cases, about the interpretation of clinical symptoms and signs, different specialties interpret the same tests differently, and physicians change their minds about the same cases around 20% of the time. This variation in practice has tremendous implications for medical practice in general and expert reports and particularly testimony.

A meta-analysis of peer review showed agreement about quality of care between physicians is about the same as chance. That casts doubt on the practice of chart reviews by peers. Charts are neither sensitive nor specific and relying on them risks drawing inaccurate conclusions if the expert is unaware of this fact. Yet they often make this mistake.

It’s easy to pass judgment with hindsight without knowing the dilemmas and uncertainties faced by a person at the time of the decision, like the nurse, and the more unfortunate the outcome, the harder the judgment after the fact. What seems evident now was not evident at the time of the decision. Hindsight bias means if you know what happened you are likely to believe you knew that at the time as well. Once you know what to look for, you’ll find it. Hindsight bias is unacknowledged in law.

Expert witnesses and writers of expert reports are unregulated and unaccountable, unlike their professional colleagues who they judge. They seldom ask for another opinion or do proper literature searches, which is the standard of excellence in science, which itself puts a question mark on the “expert” label. As a minimum an expert report should acknowledge the complexities described above, yet they never do.

Fact is, medical practice takes place in a very complex biological, technological, and social environment in which much is uncertain and a lot constantly changing, often unpredictably. For the traditional mechanistic approach its predictable and controllable, hence a person is responsible and accountable if anything goes wrong, which biases us to legalistic approaches to errors and mistakes. From a complexity perspective responsibility and accountability is distributed, like the nurse’s case, and you deal with a problem system. Hence, what matters is learning from mistakes, not punishing them.

There is a human side to flawed expert reports and testimonies, it has consequences. Patients are the victims of error, but physicians are wounded by it as well and become its second victims. I read somewhere doctors who don’t practice don’t make mistakes; every doctor knows the sick feeling when things go wrong. You feel incompetent, fear the patient’s anger, dread the coming punishment, and you know you can expect little sympathy from colleagues who become expert witnesses to the event. In the aftermath, many physicians are discouraged, lose their nerve, turn to alcohol or drugs, experience post-traumatic stress, consider or commit suicide, or leave the profession. My example is of a nurse victim, because all health professionals face the same problem. It is a tragedy we do so little for our colleagues when they suffer, a bigger tragedy we sit in judgment of them as “experts”, and the biggest tragedy of all is it renders us incapable of learning from the mistake, so it gets made again and again.

Many organizations such as insurance companies, ministries of health, health authorities, etc., have in-house or part-time physician experts who are no different from legal or regulatory expert witnesses, hence the same problems apply. The foundation of the Hippocratic Oath was respect for the society, for truth, one’s colleagues, and patients. Today, sadly, because of corporatization and its associated legalistic approach to complex issues, it’s become an arcane forgotten document replaced by an oath to Hermes, patron of both commerce and scammers, whose staff happens to be the symbol of medicine.