Novis, DA. Current state of malpractice litigation. Acta Cytol. 1998; 42:1302-4.

To the Editors:

I enjoyed reading the definitive and comprehensive review by Frable et al concerning the current state of malpractice litigation, as well as the thoughtful and provocative commentaries that followed it [Frable WJ et al: Medicolegal affairs. IAC Task Force summary. Acta Cytol1998:42:76-132].

My interest alighted on several endorsements, both explicit and implied, concerning the notion of establishing centralized panels to review Pap smears in litigation. Until recently, I was convinced that the creation of review panels would improve our system of malpractice litigation. I also believed that the American Society of Cytopathology (ASC) should be the institution that establishes these panels because I thought that might be a way for the ASC to resolve several major problems facing it. I now believe that these review panels are unworkable, and that the ASC is already well on its way to resolving its problems without needing to establish review panels.

It had seemed to me that an institutionalized mechanism of slide review may have undermined what I consider to be betrayal of our membership by officers who use their ASC status to profit from malpractice litigation brought against the very Society members who elected them to those offices in the first place. I’m not saying that our colleagues shouldn’t be allowed to sell their expertise to plaintiffs’ attorneys. However, when expert witnesses bolster their credentials in court by conjuring up their positions of leadership in our esteemed Society, lawyers have a way of making it sound as if they speak for all of us. If that be the case, I think we should be a part of the process that determines what the standards of performance are going to be, and who, in the name of our Society, will articulate them.

As it turns out, the Society is already attempting to deal with this issue. Candidates for ASC office must now declare their malpractice activity to the membership. If we choose, we can take these activities into account when we cast our votes. Secondly, I believed that an ASC-based national arbitration board would show that, contrary to the characterization that it sometimes inadvertently projects, the Society’s leadership is truly sensitive to the anxieties of its members. In a recent poll conducted by the ASC, members indicated that the number one issue that they wanted the Society to confront was that of practice standards, particularly regarding malpractice litigation. There, too, the Society may be on the way to resolving this, if it indeed embraces the so-called South Carolina Guidelines.

Finally, and this really provided me the main impetus for the concept, I believed that the creation of an impartial arbitration board reviewing litigation material, never knowing if they were rendering opinions for the plaintiff or the defense, struck me as a fair way to decide whether or not a defendant achieved, and the plaintiff received, a reasonable standard of care.

Subsequently, I came to find out that the Committee on Cytopathology Practice considered, and then rejected the notion of a review board quite some time ago. To understand why, I retraced their research. I talked to lawyers and malpractice risk man managers representing the Doctor’s Company, the College of American Pathologists, the American College of Radiology, and the American Medical Association, as well as to private practitioners of malpractice law. Their opinions, with only a few exceptions, were much the same: the system is not about what is or what is not fair to cytopathologists angered at having their competence publicly impugned. It’s about winning cases in malpractice court.

The people with whom I spoke all agreed that a central review board is, in concept, a great idea. In fact, many states have arbitration boards for civil litigation. Nobody uses them. In many states, the court itself can call its own unbiased expert witnesses. They don’t. This does not represent some sort of legal irony; it’s how our legal justice system operates. Malpractice attorneys don’t start out with missed cells on a Pap smear. They start out with a client who claims injury and an obligation to that client to convince a jury that the client should be compensated for that injury. If the plaintiff’s attorney needs to show that Pap smear results contributed to the injury, he/she will try to find someone to say so. Indeed, in most states, a plaintiff’s attorney cannot initiate legal action without the endorsement of an expert witness.

The defense cannot coerce the plaintiff into submitting a smear to some central arbitration panel. Defendants’ insurance companies do not necessarily endorse these arbitration panels, either. Once a case has been filed, insurance companies prefer to have their arguments articulated by experienced experts who are adept at defense testimony rather than by impartial panels who may render an opinion that might be less than favorable to their own position. In fact, the last thing that the defense wants to do is to give the plaintiff’s expert the soap box upon which to perch in front of a jury and crow about how cumbersome and unnecessary the review panel is to conclude what is obvious to the most casual observer, namely, that the defendant’s error was gross and that the laboratory’s practice did not meet the most minimal standard of care.

Until we see tort reform in America, I think we’re stuck with this system. Rather than trying to change the entire legal system, maybe all the ASC can do is try to change the behavior of those who choose to belong to it. The Society can establish standards of practice for its members. It can devise mechanisms of case review for members who would like to measure how their practice compares to that of their peers. It can ratify uniform standards of slide review, such as those embodied in the South Carolina Guidelines. I suspect that not many members would choose to deviate from Society standards, at least not if they desired maintaining the esteem of their fellow Society members, let alone their very membership in the Society.

Perhaps, too, Society members might perceive these types of activities as adding value to their ASC membership. As I understand it, the Committee on Cytopathology Practice is engaged in setting standards of practice and standards of behavior for members involved in malpractice litigation. I patiently await their report later this year.

David A Novis, M.D. Wentworth Douglass Hospital Dover, New Hampshire 03820