A PROACTIVE, DATA-BASED DETERMINATION OF THE STANDARD OF MEDICAL-CAREIN PEDIATRICS

A 3-week-old infant awoke with a fever. He was taken to the doctor who noted that the child was irritable. The doctor took him to the hospit al where a resident performed a spinal tap, started an intravenous (IV ) line, and ordered antibiotics. The entire drama, from entering the d octor's office to infusion of ampicillin, took 2 hours. The doctor was sued for malpractice. Expert witnesses for the plaintiff testified th at he had deviated from the standard of medical care by taking too lon g to administer antibiotics, which, in their view, ought to have been given within 30 minutes. Expert witnesses for the defense testified th at 2 hours to administer antibiotics in this case was within the stand ard of care. What ought to be the response of the pediatric community to discrepant expert testimony such as this? One possible response is nothing. Lawyers from both sides will find expert medical witnesses wh o articulate positions favorable to their clients (as they did in this case), and the truth will emerge after vigorous cross-examination. Th is, we suggest, is inadequate. We believe that some expert opinions ca n be viewed as better than others. That is, some opinions describe the standard of medical care correctly while other expert opinions are (t o put it charitably) idiosyncratic, failing to depict accurately the s kill and care ordinarily administered in comparable situations. Curren tly, jurors are informed about the standard of care by expert witnesse s, who rely on their own medical knowledge and experience. However, a huge body of literature demonstrates that recollections of individual experience are inevitably flawed, and flawed in a nonrandom direction (the Monday morning quarterback phenomenon). Consider the infant with meningitis. When experts in pediatric emergency medicine and pediatric infectious diseases (ID) were asked about the median time from emerge ncy room (ER) presentation to administration of antibiotics in a child with suspected meningitis, their opinions were wrong and slanted towa rd the outcome known to be desired (namely, a shorter elapsed time). E R physicians (median estimated time to antibiotic administration [AB-T IME] = 46 minutes) and ID physicians (median estimated AB-TIME = 80 mi nutes) consistently underestimated the actual median value of AB-TIME determined by chart review (120 minutes). From the judicial perspectiv e such potential flaws in expert testimony are assumed to be equally d istributed among experts. All admissible evidence is a priori of equal weight until a jury decides otherwise. The standard of medical care i s created anew by expert testimony in each individual case, disappeari ng, like Brigadoon, upon resolution of the dispute. However, to anyone but a lawyer, the standard of medical care must exist as something ou tside the courtroom testimony of experts, and if it does exist, it sho uld be easily described so that expert testimony ran be judged more (o r less) accurate in depicting it. We contend that medical care is not a single behavior that conforms to or deviates from an idiosyncratic a nd retrospectively determined standard, but rather a distribution of b ehaviors in response to a variety of medical circumstances. For a give n scenario, each of several possible responses can be ascribed a relat ive frequency based on empirical data, and the consequent normal curve depicts the totality of medical care. Substandard care then falls out neatly as behaviors lying outside the large majority of cases. Juries would be empowered (as they are currently) to determine exactly where on this curve substandard care lies, but at least the debate would sh are the same description of reality.Recent US Supreme Court guidelines regarding expert testimony provide an opportunity to expand the use o f databases in medical negligence cases. The Court restricted expert t estimony to ''scientific knowledge... based on generating hypotheses a nd testing them to see if they can be falsified... '' The testable/fal sifiable hypothesis in negligence cases is almost always the same-did the behavior in question fall within or outside the distribution of me dical care that is ordinarily used in similar cases? We propose a simp le two-part answer. First, determine the data-based distribution of st andard medical care in similar circumstances. Next, superimpose this d istribution upon the care actually provided. Why is this so hard? Why haven't people done this before? First, lawyers hate it. Not just plai ntiffs lawyers-defense lawyers as well. Most lawyers are suspicious of all data sets. At the heart of this scepticism is a fundamental confl ict. The legal profession can scarcely afford to embrace a theoretical vision of a data-based standard of care in advance of a particular ca se. What if the next client's behavior falls well outside the standard of care distribution? Second, doctors hate it. More precisely, doctor s distrust standards of any kind-imposed by third parties, inevitably distorting the doctor-patient relationship as it is romantically conce ived. As one eminent pediatrician recently articulated, ''Each infant or child...is an individual problem and one which cannot be measured a gainst others...there can be no standard care or standard of care that can cover all cases.'' Nevertheless, most pediatricians will be sued during their professional lifetime, most expert testimony will be woef ully inadequate, and most jury judgments will be based on whimsy and d ebilitation, not negligence. It behooves us as a profession, and as pr ofessionals, to face this problem more directly. To this end, we recom mend the following: The American Academy of Pediatrics should organize a database of the issues involved in pediatric malpractice lawsuits. Members should be encouraged to report their experience with alleged d eviations to the Academy. Some issues would likely recur-such as lawsu its dealing with meningitis alleging a delay in therapy, or lawsuits i n which extremely premature infants were not treated in the delivery r oom or were sent home without apnea monitors. When common themes were identified, the Academy could survey members, or better yet develop da tabases reflecting actual practice (as opposed to reports of practice) . These data, when published, would then presumptively define the spec trum of standard medical care to be applied, wherever possible, agains t the specific facts of an alleged instance of medical negligence. We welcome constructive comments.