Pathology and Law: A Practical Guide for the Pathologist

Archives of Pathology & Laboratory Medicine, Feb 2005 by Kaufman, Michael W

Pathology and Law: A Practical Guide for the Pathologist

By Gregory G. Diwis, 221 pp, with illus, New York NY, Springer-Verlag, 2004.

Of the several excellent handbooks written on the subject of medical malpractice, Pathology and Law is the first primer that is written by pathologists and targeted to pathologists. The soft-cover edition is largely written by Dr Gregory G. Davis with additional supplemental material provided by Dr Gregory J. Davis (no relationship) and Dr Margie A. Scott. The 2 Davises have backgrounds in forensic pathology, whereas Dr Scott has contributed in areas of clinical pathology. The book is well written in a conversational style and is peppered with many malpractice scenarios well recognized by in-the-trenches anatomic and clinical pathologists. Its brevity (208 written pages) and low price also make this an extremely attractive book. As stated by the authors, the goal of their book is to sufficiently educate pathologists about the legal system and the courtroom so that we can avoid confusion and make a better impression in our courtroom defense.

The book is divided into 10 chapters and contains an appended glossary of frequently used legal terms. The first chapter provides an introduction that articulates the similarities and differences between lawyers and physicians. Just as lawyers feel out of sorts when they are patients, so too do physicians feel uncomfortable and confused in court, because they have been coerced into a court appearance and their professional reputations may be on the line.

Chapter 2 explains the theory and operation of the adversarial American legal system. The text disabuses the notion that verdicts always are the result of a correct interpretation of evidence. Rather, our legal system is described as a clash of opposing sides, each championed by its attorney, where the valid testimony of a truthful witness can be rendered useless if that witness flounders in the heat of cross-examination. Sitting in the witness seat under cross-examination is more stressful than any surgical pathology "hot seat" for reading frozen sections. The remainder of the chapter describes the cast of characters that appear in the legal battleground: jury, judge, plaintiff's lawyer, defense lawyer, fact witnesses, and expert witnesses. Although we as surgical pathologists pride ourselves on being "100%" certain a biopsy specimen demonstrates carcinoma, many of us are surprised that in court the burden of proof in civil malpractice cases is based on only the "predominance of evidence," in that an expert's beliefs and opinions need only be medically probable, being more likely true than not (ie, 51%).

Chapter 3 discusses the impact of law on pathology as exemplified by case studies of what are everyday occurrences to us. Covered in this chapter are such essential topics as the treatment of surgical pathology specimens of forensic worth (eg, bullets, other foreign objects, traumatically ruptured spleens), the liberal use of photography specimens, rules of chain of custody, and the treatment of specimens with civil implications (especially potential malpractice cases). Detailed discussions follow regarding the proper processing of a lymph node biopsy specimen (eg, flow cytometry, immunochemical analysis). Articulated is the need to always focus on the breadth of diagnostic possibilities to guide the tissue studies appropriately based on those possibilities that the differential diagnosis would entertain and the need to document all ancillary studies performed (with both positive and negative results). The authors adhere to the old adage that "if it wasn't documented, it wasn't done." Likewise, they advise never to render a "final diagnosis" if ancillary studies or consultative reports are still pending.

Because of their roots in forensic pathology, the authors give an impassioned plea for the performance of autopsies, especially in cases that might be considered clinical failures, with the far greater likelihood that the information generated from such autopsies, even if uncovering diseases not clinically suspected when the deceased was alive, will exonerate a defendant clinician. The unofficial 11th commandment of pathologists is articulated unequivocally: neither change your postmortem findings once a final report has been issued nor by omission fail to document adverse clinical and surgical events that contributed to the death of the individual. The chapter also details the ground rules of legal autopsy practice: know who is allowed to sign the permit, correctly identify bodies, have respect for the limitation of dissection, and save body fluids and tissues for potential future toxicologic analysis. The reminder of the chapter is an encyclopedia of pathologic issues to which we all have been exposed: potentiality of false-positive results in testing for drugs of abuse; admissibility of hospital blood alcohol testing for medical purposes without the usual chain of custody expected of criminal evidence; issues of hospital employee drug testing (or contract testing for other companies' employees); issues in transfusion medicine; laboratory errors, including computer entry errors, specimen mix-ups, and specimen mishandling; reporting of critical values in clinical laboratory testing (and its documentation); disciplinary actions against laboratory employees; legal status of informal (curbside) consultations; the practice of intradepartmental consultations in difficult surgical pathology cases; and implementation of total quality improvement plans. The text is enlivened by "case studies" of real pathology malpractice cases and the references given are pertinent and up-to-date.