HEALTH :: MAY 26, 2004

Evidence-based medicine loses in a Virginia courtroom

I try to stay away from medical malpractice lawsuits in this column and talk about more uplifting topics. But a recent article in a medical journal caught my eye because it addresses issues I often focus on here — evidence-based medicine and patients making their own decisions. According to one physician’s account, these took quite a beating lately in a Virginia courtroom.

Dr. Daniel Merenstein was in the last year

of his family practice residency training in Virginia in 1999. He saw a 53-year-old man for a routine physical exam. In the process of going over a list of preventive issues, he mentioned the blood test for prostate cancer screening and talked with the patient about its risks and benefits. Many evidence-based authorities on screening do not recommend the PSA, and the test remains controversial. Some groups specifically advise physicians that given the controversy, the best approach is to explain the pros and cons to each patient and let him choose — shared decision making.

In short, Merenstein was in a training program where the modern evidence-based approach was being stressed, and he seems to have been a model pupil.

The patient elected not to have the PSA done then, but a while later, still feeling fine, he went to another physician, who simply ordered the PSA — no discussion, no choices. Sadly for the patient, the PSA level was quite high. The man ended up having a very severe and rapidly growing form of prostate cancer. The best evidence available about this particular form of cancer is that even had Merenstein insisted on the PSA test in 1999, the earlier diagnosis would have made no difference whatever in the eventual outcome. Nonetheless both Merenstein and his residency program were sued.

As Merenstein watched the trial begin in 2003, he felt confident. He assumed he’d be charged with failing to offer the patient the PSA test, and he knew he had and that this was carefully documented in the chart. He was not prepared for the argument that the plaintiff’s lawyer unleashed.

The lawyer charged Merenstein and the clinic with having talked to the patient about the test. He proceeded to call as witnesses several local physicians, who testified that they just did the PSA routinely on their patients and never talked with them about this. Of course, Merenstein’s faculty teachers knew that this was common practice in the community. They were teaching their residents to talk with patients about the evidence and offer patients a choice because they thought that was the better way. Now they were being sued for practicing “better” medicine.

The residency had on its side a number of the national experts in screening tests and in evidence-based medicine, who explained in great detail why the PSA can be harmful as a screening test and why using it here would probably not have changed the outcome. The opposing lawyer played directly to this testimony. He closed to the jury as if evidence-based medicine itself was on trial. He depicted it as a cold, evil movement aimed at saving money and not at saving lives.

The jury apparently ate it up. Merenstein was exonerated. The residency program was found liable for $1 million.

Let me insert here that there are all sorts of qualifiers that are needed when you try to summarize a court trial into a few sentences, and especially when you hear only one side of the argument. But the personal impact on Merenstein, who appears from the article to be the sort of bright young physician any of us teachers would be proud to have trained, is a separate matter. He wrote, “As I see it, the only way to practice medicine is to keep up with the best available evidence and bring it to my patient. As I see it, the only way to see patients is by using the shared decision making model. As I see it, I’m not sure I’ll ever want to practice medicine again.”

As I see it, reading about this case is like reading about a jury decision in which a modern, scientific physician was found liable for negligence because he failed to use leeches.

So this court decision was a downer. Just to balance out the record I’ll talk next time about a more favorable malpractice experience.

Howard Brody, MD, teaches family practice and medical ethics at Michigan State University. You can reach him at brody@msu.edu.

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