Skip to content
  • About
  • Contact
  • Contribute
  • Book
  • Careers
  • Podcast
  • Recommended
  • Speaking
  • All
  • Physician
  • Practice
  • Policy
  • Finance
  • Conditions
  • .edu
  • Patient
  • Meds
  • Tech
  • Social
  • Video
    • All
    • Physician
    • Practice
    • Policy
    • Finance
    • Conditions
    • .edu
    • Patient
    • Meds
    • Tech
    • Social
    • Video
    • About
    • Contact
    • Contribute
    • Book
    • Careers
    • Podcast
    • Recommended
    • Speaking

When medical malpractice is not medical malpractice

Howard Smith, MD
Physician
November 1, 2024
Share
Tweet
Share

In medical malpractice, inductive reasoning regards the standard of care as the duty to do no harm. If there is a complication from a medical intervention and the medical intervention differs from the standard of care in any conceivable way, the difference alone is sufficient to conclude that the medical intervention departs from that duty.

However, unanticipated threats require nimbleness. This is a calculated risk. It causes a difference, but it does not cause harm. Nonetheless, a calculated risk can be misrepresented as the cause.

No medical malpractice lawsuit illustrates this phenomenon better than Byrom v. Johns Hopkins’ Bayview Hospital.

Sixteen-year-old Erica Byrom comes to the U.S. from Liberia in August 2014, when 18 weeks pregnant. At 23 weeks, she begins prenatal care. Two weeks later, she is admitted to Bayview Hospital for pre-eclampsia.

Sonograms are consistent with chronic antenatal conditions associated with neurologic injury. There is at least a 65% chance that the fetus has already sustained neurologic injury. She steadfastly refuses a Cesarean section unless her own life is in immediate jeopardy.

On October 24, after 22 hours of induced labor, there is a normal spontaneous vaginal delivery of a 670-gram, 26-week, female infant with a 1-minute Apgar score of 0. After resuscitation, the newborn is admitted to the NICU and is later found to have cerebral palsy.

A trial begins in June 2019. Using inductive reasoning, the plaintiff’s attorney argues that “more likely than not, at 26 weeks the fetus is normal prior to birth. If not for the failure to perform a Cesarean section, Zubida Byrom would still be normal.” It is as though the antenatal history about Liberia and subsequent sonographic findings are not factors. Also using inductive reasoning, the defense attorney argues that “more likely than not, at 26 weeks the fetus has neurologic injury prior to birth. Even if there is a Cesarean section, Zubida Byrom would still have neurologic injury.” The antenatal history and subsequent sonographic findings are factors.

Two plaintiff medical experts testify that, because of the duty to do no harm, a Cesarean section should have been performed. A vaginal delivery is a medical error.

By convention, preponderance of evidence is 50% confidence plus a vague value, and that “vague value” only needs to be a scintilla to tip the scale. In inductive reasoning, 51% confidence suffices to prove a departure from the duty to do no harm. The defense attorney uses the same metrics to cast doubt on this proof. On July 1, 2019, the jury returns a $229-million plaintiff verdict.

This would have been different with deductive reasoning. First of all, medical interventions are harmonious processes involving 10 duties. These duties interact as a collective unit, and each duty represents a particular phase. The duty to do no harm is the collective result of these 10 phases. The ten phases are: 1. Presentation, 2. Investigation, 3. Interpretation, 4. Diagnosis, 5. Discrimination, 6. Informed Consent, 7. Selection, 8. Technical, 9. Resolution, 10. Discharge.

The accepted background risk for cerebral palsy in a preterm low birth-weight newborn is 15.2%. Cerebral palsy can still occur even with the standard of care because the 15.2% is inescapable. Nevertheless, because the standard of care is error-free, the risk of cerebral palsy from each phase in the standard is the background risk. The medical intervention is designed to be a facsimile of the standard of care.

When the 10 phases of the standard of care are compared to corresponding phases in the medical intervention, if a phase is the same, that phase in the medical intervention is represented by the background risk, or 15.2%. If a phase is different, that phase in the medical intervention is represented by the “incident risk” for the complication. In Byrom v. Johns Hopkins, the incident risk is 28.3%.

The aforementioned 65% chance of neurologic injury serves as the basis for this “incident risk.” If there is a 65% chance that a Cesarean section would not alter the outcome, it follows that there is a 35% chance that it will. Hence, the risk/benefit ratio for performing a Cesarean section is 1.86. In this case, not performing a Cesarean section increases the background risk of cerebral palsy in a preterm low birth-weight newborn from 15.2% to 28.3%.

ADVERTISEMENT

The null hypothesis is “if there is no departure from the standard of care, there is no statistically significant difference between the incident risk resulting from the medical intervention and the background risk resulting from the standard of care.”

The null hypothesis is tested using the single-sample t-test. The null hypothesis is either retained or rejected. The level of significance is 0.05, corresponding to 95% confidence. The population mean is the background risk, which is 15.2%.

When the phases in the standard of care are compared to their counterparts in the medical intervention, there is a “test sample,” which collectively represents the entire medical intervention for Erica Byrom. It includes the 10 results from the comparison. The test sample is 15.2%, 15.2%, 15.2%, 15.2%, 15.2%, 15.2%, 15.2%, 28.3%, 15.2%, and 15.2%. Except for the technical phase, in which a Cesarean section is performed in the standard of care and is not performed in the medical intervention, there are no other differences between counterparts.

The result is the p-value. The p-value is 0.171718. Because the p-value is greater than the level of significance, which is 0.05, the null hypothesis is retained. The medical intervention comports with the standard of care with 95% confidence.

Hypothesis testing casts sufficient doubt on the plaintiff attorney’s inductive reasoning, which is no less than 51% confidence.

When using hypothesis testing, no medical expert with any integrity would prepare a certificate of merit favoring the plaintiff attorney. Instead of a verdict, Byrom v. Johns Hopkins would never go to trial.

On February 2, 2021, the Maryland Court of Special Appeals overturns this verdict, but it takes 16 months.

Howard Smith is an obstetrics-gynecology physician.

Prev

Why this doctor stayed stuck in a job for years and how she finally broke free

November 1, 2024 Kevin 0
…
Next

How to engage parents in autism therapy [PODCAST]

November 1, 2024 Kevin 0
…

Tagged as: Malpractice

Post navigation

< Previous Post
Why this doctor stayed stuck in a job for years and how she finally broke free
Next Post >
How to engage parents in autism therapy [PODCAST]

ADVERTISEMENT

More by Howard Smith, MD

  • The hidden incentives driving frivolous malpractice lawsuits

    Howard Smith, MD
  • How doctors can stop frivolous lawsuits before they start

    Howard Smith, MD
  • When errors of nature are treated as medical negligence

    Howard Smith, MD

Related Posts

  • Medical malpractice is a lot like running a marathon

    Christine Zharova, Esq
  • Medical malpractice: Don’t let the minority define us

    Shah-Naz H. Khan, MD
  • From medical humanities student to physician

    Nicholas Bellacicco, DO
  • A medical student’s physician inspiration

    Uju Momah
  • How the COVID-19 pandemic highlights the need for social media training in medical education 

    Oscar Chen, Sera Choi, and Clara Seong
  • A retired physician’s medical school memories

    Ronald Halweil, MD

More in Physician

  • How New Mexico became a malpractice lawsuit hotspot

    Patrick Hudson, MD
  • Why compassion—not credentials—defines great doctors

    Dr. Saad S. Alshohaib
  • Why Canada is losing its skilled immigrant doctors

    Olumuyiwa Bamgbade, MD
  • Why doctors are reclaiming control from burnout culture

    Maureen Gibbons, MD
  • Why screening for diseases you might have can backfire

    Andy Lazris, MD and Alan Roth, DO
  • Why “do no harm” might be harming modern medicine

    Sabooh S. Mubbashar, MD
  • Most Popular

  • Past Week

    • Why are medical students turning away from primary care? [PODCAST]

      The Podcast by KevinMD | Podcast
    • Here’s what providers really need in a modern EHR

      Laura Kohlhagen, MD, MBA | Tech
    • Why “do no harm” might be harming modern medicine

      Sabooh S. Mubbashar, MD | Physician
    • Why doctors are reclaiming control from burnout culture

      Maureen Gibbons, MD | Physician
    • How community paramedicine impacts Indigenous elders

      Noah Weinberg | Conditions
    • A physician’s reflection on love, loss, and finding meaning in grief [PODCAST]

      The Podcast by KevinMD | Podcast
  • Past 6 Months

    • Why are medical students turning away from primary care? [PODCAST]

      The Podcast by KevinMD | Podcast
    • Why tracking cognitive load could save doctors and patients

      Hiba Fatima Hamid | Education
    • Why “do no harm” might be harming modern medicine

      Sabooh S. Mubbashar, MD | Physician
    • Here’s what providers really need in a modern EHR

      Laura Kohlhagen, MD, MBA | Tech
    • What the world must learn from the life and death of Hind Rajab

      Saba Qaiser, RN | Conditions
    • How medical culture hides burnout in plain sight

      Marco Benítez | Conditions
  • Recent Posts

    • A physician’s reflection on love, loss, and finding meaning in grief [PODCAST]

      The Podcast by KevinMD | Podcast
    • How fragmented records and poor tracking degrade patient outcomes

      Michael R. McGuire | Policy
    • How New Mexico became a malpractice lawsuit hotspot

      Patrick Hudson, MD | Physician
    • How I learned to stop worrying and love AI

      Rajeev Dutta | Education
    • Understanding depression beyond biology: the power of therapy and meaning

      Maire Daugharty, MD | Conditions
    • Why compassion—not credentials—defines great doctors

      Dr. Saad S. Alshohaib | Physician

Subscribe to KevinMD and never miss a story!

Get free updates delivered free to your inbox.


Find jobs at
Careers by KevinMD.com

Search thousands of physician, PA, NP, and CRNA jobs now.

Learn more

Leave a Comment

Founded in 2004 by Kevin Pho, MD, KevinMD.com is the web’s leading platform where physicians, advanced practitioners, nurses, medical students, and patients share their insight and tell their stories.

Social

  • Like on Facebook
  • Follow on Twitter
  • Connect on Linkedin
  • Subscribe on Youtube
  • Instagram

ADVERTISEMENT

  • Most Popular

  • Past Week

    • Why are medical students turning away from primary care? [PODCAST]

      The Podcast by KevinMD | Podcast
    • Here’s what providers really need in a modern EHR

      Laura Kohlhagen, MD, MBA | Tech
    • Why “do no harm” might be harming modern medicine

      Sabooh S. Mubbashar, MD | Physician
    • Why doctors are reclaiming control from burnout culture

      Maureen Gibbons, MD | Physician
    • How community paramedicine impacts Indigenous elders

      Noah Weinberg | Conditions
    • A physician’s reflection on love, loss, and finding meaning in grief [PODCAST]

      The Podcast by KevinMD | Podcast
  • Past 6 Months

    • Why are medical students turning away from primary care? [PODCAST]

      The Podcast by KevinMD | Podcast
    • Why tracking cognitive load could save doctors and patients

      Hiba Fatima Hamid | Education
    • Why “do no harm” might be harming modern medicine

      Sabooh S. Mubbashar, MD | Physician
    • Here’s what providers really need in a modern EHR

      Laura Kohlhagen, MD, MBA | Tech
    • What the world must learn from the life and death of Hind Rajab

      Saba Qaiser, RN | Conditions
    • How medical culture hides burnout in plain sight

      Marco Benítez | Conditions
  • Recent Posts

    • A physician’s reflection on love, loss, and finding meaning in grief [PODCAST]

      The Podcast by KevinMD | Podcast
    • How fragmented records and poor tracking degrade patient outcomes

      Michael R. McGuire | Policy
    • How New Mexico became a malpractice lawsuit hotspot

      Patrick Hudson, MD | Physician
    • How I learned to stop worrying and love AI

      Rajeev Dutta | Education
    • Understanding depression beyond biology: the power of therapy and meaning

      Maire Daugharty, MD | Conditions
    • Why compassion—not credentials—defines great doctors

      Dr. Saad S. Alshohaib | Physician

MedPage Today Professional

An Everyday Health Property Medpage Today
  • Terms of Use | Disclaimer
  • Privacy Policy
  • DMCA Policy
All Content © KevinMD, LLC
Site by Outthink Group

Leave a Comment

Comments are moderated before they are published. Please read the comment policy.

Loading Comments...