Since he was not on a monitor, we do not really know what his heart was doing during all of that time. was he in an arrhythmia? Was he in and out of an arrhythmia? With panic attacks, it is not uncommon for the patient’s rhythm to be sinus tachycardia, which sounds bad, but is a normal response to panic.

The witness for the plaintiff claimed that he knows with certainty what happened, because he had all of the information the doctor had. He admitted that he had not read any of the statements from the nurses. He also did not have an opportunity to examine the patient, which can be the most important piece of information available to the doctor. He does not have that information, so he denies that assessment is important. I guess being a hired gun means being psychic.

So wouldn’t there be some limits on the requirement to be prepared to cope with anticipated traffic? It would seem to me that such a requirement would end up costing at least some hospitals so much money that they’d be forced to close their emergency rooms. Sure, I can imagine situations in which a hospital just doesn’t bother to provide enough rooms for cardiac monitoring even though they could, and many people die as a result, but I can also imagine situations in which, a hospital especially an older hospital in a poorer area coping with not enough space and not enough money and too much need, does the best it can but finds that that’s not enough for all comers.

Those of us fortunate enough to have good insurance are definitely in a position to obtain a lot of good routine medical care, but I’ve always assumed that the fact that so many people don’t have good insurance combined with doctors’ and hospitals’ responsibility to provide lifesaving care even if the patient can’t pay for it means that when it comes to emergency rooms and lifesaving therapies there will be rationing and it won’t be based on what insurance plans patients have.

A facility, staffing and material levels that suffice for 50k population will almost certainly fail at some point as that population expands.

I guess my thought process goes like this. 1. There is never a clear “standard” of care if a “standard” is not generally agreed to. There is a “standard” for flying an instrument approach in a aircraft, a set checklist of things that must be accomplished at a minimum. In medicine, assuming you can find a paid whore to spout your case, you can argue the “standard”; but if it is arguable then it isn’t a standard. 2. As such, there is absolutely no utility in case analysis for physicians in terms of attempting to learn from or extrapolate the findings of any given suit. This leads to the almost superstitious, and as you and Matt have pointed out – often ineffective, changes to practice in the name of avoiding suits. 3. If a standard is defined, in short order, a clear cut pathway will exist for almost every presentation. This would allow physicians to cut down on unnecessary procedures and testing. 4. Defining a standard really is the practice of medicine and is a complicated procedure. Deciding if that given standard was violated or if that violation resulted in injury seem more like disputes best settled by a jury. 5. I have to believe that many of the physician complaints regarding lawsuits would disappear if there at least existed some guidance from the courts on what the appropriate actions are to be in a given presentation. While I agree with you that much of what constitutes “defensive medicine” is likely ineffective at reducing liability, I think that lawyers in general fail to see the stress the threat of lawsuits bring to physicians. While it is true that unmerited suits rarely pay out, it does happen. As such it is a subject of fear. There is no difference between a physician fearing suits and thus lawyers than an africian american fearing unjust incarceration and thus fearing the police. Yes, such events are rare, but they are so devastating and seemingly without any more provocation than “wrong place, wrong time”.

The core difference there is that patents (and trademarks, and insurance policies, and ‘integrated’ contracts [where the contract excludes all oral statements]) boil down to a single written document, which makes them squarely within the province of the court to interpret. To word that another way, courts are generally allowed to determine themselves, without fact-finding by a jury, what words on a paper mean.

When it comes to a standard of care, there’s no underlying document – like a patent or a trademark filing – for the court to parse through for its legal meaning. It’s just one expert disagreeing with another.

There are, in theory, safeguards against bogus medical theories coming in (typically called a “Daubert” or “Frye” hearing depending on the state), but in practice these mean little, since there’s not much for the court to do there: presumably, the expert in question has some substance to the opinion, substance which the court is ill-equipped to review.

Some have recommended adding a “neutral” expert to the process. But as I wrote before (see http://bit.ly/7FoIm4 ):

“[C]hosing a “neutral” expert and the materials they opine on will probably make medical malpractice litigation more contentious, expensive, and uncertain because it will at best resemble the Markman process used in evaluating patent disputes. Markman hearings often involve the selection of a “neutral expert” in helping the judge determine the meaning of a patent, a process loathed by patent attorneys for adding “a whole new level of lawyering, cost, delay and, some say, uncertainty to patent litigation.”

Moreover, there’s a fundamental question about how much probative value the neutral expert would add. What would they base their opinion on? Why, the same studies, experience and training that the parties’ experts do, all of which is already subject to cross-examination by the opposing party. Adding an expert might then end up doing little more than making medmal litigation more expensive than it really is, without doing much to change the overall process’ reliability.

What I don’t understand is that in Federal Trademark law, the definition of terms is considered a point of fact and too technical for a jury. Should not the standard of care also be considered a “fact”. If we, as physicians or lawyers, state something is a “standard”, then that standard should be definable and agreed to. I think physicians’ collective concern would largely disappate if the equivalent of Markman Hearing were held in MedMal. The findings could be applied by other physicans to improve overall care, and the plaintiff would still be free to avail themselves of the jury system to discuss to dispute over if the standard was breeched or if that breech caused injury. But asking a jury to decide what the standard of care is – that is a complex issue (but one that should be able to be answered outside of the trial).