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Expert Opinion Testimony and the Standard of Appellate Review - blogger.com
Caplan Clinical Professor, Anesthesiology; and Chair, Committee on Professional Liability, American Society of Anesthesiologists. Received from the Departments of Anesthesiology, expert opinion review, University of Washington School of Medicine, and the Virginia Mason Medical Center, Seattle, Washington.
Submitted for publication May 1, expert opinion review, Accepted for publication July 19, Supported by the American Society of Anesthesiologists. Preliminary results presented at the Annual Meeting of the American Society of Anesthesiologists, San Francisco, California, October 29, The opinions expressed herein are those of the authors and do not represent the policy of the American Society of Anesthesiologists.
Address reprint requests to Dr. Posner: Department of Anesthesiology, University of Washington School of Medicine, BoxNE Pacific Ave. Address electronic mail to: posner u. Karen L. Posner, Robert A. Caplan, Frederick W, expert opinion review. Cheney; Variation in Expert Opinion in Medical Malpractice Review. Expert opinion in medical malpractice is a form of implicit assessment, based on expert opinion review individual opinion.
This contrasts with explicit assessment processes, which are characterized by criteria specified and stated before the assessment. Although sources of bias that might hinder the objectivity of expert witnesses have been identified, the effect of the implicit nature of expert review has not been firmly established.
Pairs of anesthesiologist-reviewers independently assessed the appropriateness of care in anesthesia malpractice claims. With potential sources of bias eliminated or held constant, the level of agreement was measured.
Thirty anesthesiologists reviewed claims, expert opinion review. Divergent opinion stemming from the implicit nature expert opinion review expert review may be common among objective medical experts reviewing malpractice claims. Key words: Anesthesiology: liability; peer review. Insurance: claim review; liability. Malpractice, medical: expert testimony.
The role of the medical expert in malpractice litigation is to assist the court in determining the cause of injury and whether the applicable standard of care was met.
Disagreement among medical experts not only plays a prominent role in court proceedings but also influences pretrial decisions on whether a claim of injury is pursued and the manner in which it is pursued. Conversely, an expert opinion that the standard of care was met may lead to an aggressive defense by the defendant or withdrawal of the suit by the plaintiff.
The existence of conflicting expert opinion is often attributed to bias arising from monetary compensation by the plaintiff or defendant. Less obvious bias may occur when the expert develops a personal affinity for expert opinion review plaintiff or defendant or for one or more members of the litigation team, introducing advocacy rather than objectivity into the opinions rendered.
Another important source of conflicting expert opinion may be the nature of expert review. Expert opinion is a form of implicit judgment.
Each expert may use his or her own unstated criteria to assess quality of care. Few studies of the reliability of quality of care judgments based on implicit peer review criteria have incorporated sound statistical methods. In the remaining studies, assessments relied on case abstracts rather than complete and original documents in the peer review process.
This study measures the level of agreement among objective medical expert reviewers of actual malpractice claim files.
The review was sponsored by an outside party with no role in the litigation, and the medical experts received no compensation for their reviews. All expert reviewers were members of the same specialty at issue in the claim. They had access to complete claim files, as would a medical expert participating in litigation. With other sources of bias eliminated or held constant, the level of agreement among expert implicit judgments of the appropriateness of care was measured.
Data were collected as part of the American Society of Anesthesiologists ASA Closed Claims Project. This expert opinion review, carried out by the ASA Committee on Professional Liability, expert opinion review, is an ongoing study of adverse anesthetic outcomes based on information contained in the closed claim files of 34 professional liability insurance companies throughout the United States that insure approximately 14, anesthesiologists.
The project and data collection procedures were described previously. Between December and October expert opinion review, teams of anesthesiologist-reviewers visited the offices of ten insurance companies to review files of closed malpractice claims against anesthesiologists.
All claims except those for dental damage were eligible for inclusion in the study. At each company, sets of three files each were randomly selected by one of the reviewers from the entire set of files available for review at the start of the visit. Selection of three-file sets was made using a random-number list provided by the investigators, expert opinion review.
Each three-file set was reviewed by two anesthesiologists who were instructed to refrain from consulting with each other. When possible, expert opinion review, paired reviews occurred on different dates, with time of day matched. Each participating anesthesiologist was eligible to review multiple sets of files with different partners on the same or different review visits, up to a maximum of two three-file sets six files per reviewer per visit and five three-file sets 15 files total per reviewer over the course of the study.
Reviewers with previous experience reviewing files for the ASA Closed Claims Project were eligible to participate in this study if they were active in the clinical practice of anesthesia and had been in practice at least 3 y. Completed reviews were sent to the central project office for analysis. The claim review process consists of review of all materials in the file and completion of the ASA Closed Claims Project data collection form according to a standardized set of instructions, expert opinion review.
Typically a closed claim file contains the hospital record, anesthesia record, narrative statements, statements of involved health care personnel, expert and peer reviews, deposition summaries, outcome reports, and cost of settlement or jury award. Reviewers completed a data collection form for each claim in which there was enough information to reconstruct the sequence of events and nature of the injury.
The data collection form consists of more than items covering basic demographics, anesthetic techniques and personnel, damaging events, patient injury, expert opinion review, settlement information, assessments of preventibility, judgment of appropriateness of care, and a narrative description of the sequence of events. For this study, we measured agreement on only a single item on the data collection form: Was the anesthesia care appropriate, expert opinion review, less than appropriate, or impossible to judge?
Appropriate care was defined as care that was reasonable and prudent by the standards of anesthetic care at the time of the event. Less-than-appropriate care was defined as care that was less than that standard of a reasonable and prudent practitioner at the time of the event.
Reviewers were instructed to render a judgment of "impossible to judge" if, expert opinion review, due to inadequate or conflicting information, they could not determine if the standard of care had been met. Claims for which this question was unanswered by reviewers were excluded from analysis.
Because severity of patient injury can influence reviewer judgments of appropriateness of care, [21] we separated the claims into two subsets for analysis: 1 temporary or nondisabling injuries and 2 permanent and disabling injuries, expert opinion review.
We also analyzed the entire set of claims as a group. Temporary or nondisabling injuries include such complications as emotional distress, sore throat, corneal abrasion, and uncomplicated pneumothorax. Permanent and disabling injuries include death, expert opinion review, permanent brain damage, major nerve damage, and other injuries from which full recovery cannot occur or is not expected.
Claims on which reviewers disagreed on this generalized level of severity of injury were excluded from the subset analysis. Agreement between paired reviewers was measured using the kappa statistic Appendix 1. Because agreement is expected to exceed chance levels among a group of specialists, it is the amount of expert opinion review beyond chance rather than simply statistical significance that serves as the measure of reliability.
A kappa value less than 0. A kappa value greater than 0. Confidence intervals of kappa were calculated using jackknife calculations of standard error. One hundred three claims, each independently reviewed by two expert opinion review, were eligible for inclusion in the study.
In all, 30 anesthesiologists reviewed 2 to 15 claims each median of five claims. The median age of reviewers was 48 y range, 31 to 68 y and all were board certified. Reviewers had been in practice 5 to 41 y expert opinion review, 16 y.
These claims were not included in the subset analysis. All kappa expert opinion review were statistically significant. Although the distinction between appropriate and less-than-appropriate care may seem evident to individual physicians, the results of the present study suggest that practicing anesthesiologists exhibit only fair agreement on this issue.
Agreement was not improved by controlling for expert opinion review of injury. Nonrandom agreement i. A kappa value of 0. The use of multiple experts has the potential to improve the reliability of reviewer assessments. Incorporation of explicit criteria such as clinical practice guidelines into a structured review process might reduce the number of reviewers needed for a reliable assessment.
The process of review in the present study was analogous to that which occurs when a medical expert reviews a case for a malpractice proceeding, expert opinion review that sources of bias were minimized or held constant. As in actual malpractice review, each reviewer was provided with a detailed set of original records and related documents. Judgments of appropriateness of care were based on the conventional yardstick of reasonable and prudent practice. This is the usual practice in litigation review.
The reviewers were all experienced in claims review, expert opinion review, board certified, and active in the clinical practice of anesthesiology, expert opinion review. Reviewers all met the current ASA guidelines for expert witnesses, expert opinion review.
Previously we showed that standard-of-care judgments based on implicit criteria are influenced by case outcome. Although expert opinion review biasing effect of knowledge of the injury might have been avoided in this study by blinding reviewers to the outcome expert opinion review the cases, the study procedures replicated the real-life situation in which an expert has access to outcome information when forming an opinion.
We must be cautious in making generalizations from the results of this study because of several limitations of the study design. Reviewers were not selected at random but rather represent an opportunity sample selected from a national set of volunteers, expert opinion review. Criteria for selection were geographic proximity to the site of claim files insurance companies and review experience. Expert opinion review reviewers were not matched with expert opinion review by subspecialty, exclusion of cardiac, pediatric, and obstetric claims from the analysis did not change the results.
Similarly, claims were not selected purely at random, expert opinion review. Although claims reviewed at each site were selected by a random process, the companies were not. Only companies that allow access to their files and had more than 25 closed claims available for review were included in the study. The distribution of injuries and their severity in this study closely matches the distribution of claims in the national ASA Closed Claims database. This study introduces a new perspective into the expert witness problem in medical liability.
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, time: 13:18Expert Opinion Journal Collection - Librarian Resources
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