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Medical malpractice and anesthesiology: literature review and role of the expert witness

[Fautes médicales et anesthésiologie : revue de la littérature et rôle du témoin expert]

From the Department of Anesthesiology, University of Ottawa and the Ottawa Hospital, Ottawa, Ontario, Canada.

Address correspondence to: Dr. Edward Crosby, Department of Anesthesiology, The Ottawa Hospital – General Campus, 501 Smyth Road, Ottawa, Ontario K1H 8L6, Canada. Phone: 613-737-8187; Fax: 613-737-8189; E-mail: ecrosby{at}sympatico.ca

Purpose: To provide a narrative review of the physician experience of medical malpractice litigation applied to an anesthesiology case with particular emphasis on the role played by medical expert witnesses.

Sources: Literature searches were conducted of English-language medical publications published between 1996 – 2006 using both Medline and Pubmed databases. Key words included: "medical malpractice"; "medical malpractice litigation"; "medical expert witness"; "expert witness liability", "expert witness bias"; "hindsight bias"; and "outcome bias".

Principal findings: Patient injury resulting from medical care is common but most injured patients do not sue. Implicit review of medical files is biased to an important degree by the occurrence of severe injury; care is more often deemed substandard when the resulting injury is severe. Expert analysis of medical mal-occurrences is influenced by both hindsight and outcome bias. Compensation for those who do sue is influenced by the severity of injury and the degree of disability. The activity of experts is not commonly subject to review by peers, professional groups or licensing authorities.

Conclusions: The legal process for resolving patient claims against physicians is well delineated and transparent; its operational features are complex and prejudiced by severe outcomes. Bias is pervasive in the analysis of medical occurrences and may result in findings against caregivers which are unfair.