The current malpractice system has major drawbacks that are not always elucidated by those who discuss it. I am writing in response to Dr. Richard Chesbrough's commentary ("Expert witness review helps protect patients," November 2003, page 33). I agree with Dr. Chesbrough that the issues are complex and demand a more balanced appraisal, but disagree with him on several key points.

For example, the commentary states that the expert witness review helps protect patients, but what about protections for physicians from unfair litigation? After expert witness review, many malpractice cases are abandoned, and the implication is that the system is somehow fair because cases are dropped. What this doesn't consider is that this process takes a mental, physical, and financial toll on physicians because they have to prepare, attend, and pay for legal defense against frivolous lawsuits until a case is dropped. Does a patient's right to sue outweigh a physician's right to protection from frivolous lawsuits?

The commentary states that there are malpractice cases that warrant further investigation and that this is unusual. That is probably true. Doctors are human, medicine is complex, and a few cases of malpractice may occur. But this does not excuse the multitude of frivolous lawsuits that have no basis and should never have been filed.

I also question how fair the system actually is. Does anyone believe it is fair that the plaintiff's attorney compensates an expert witness physician and that only one opinion matters? Monetary incentives must be removed from the process for the testimony to be "as impartial and objective as possible," as outlined in the ACR guidelines for expert witness testimony.

I do agree with Dr. Chesbrough that honest physicians should be part of peer review. When honest physicians take into consideration reasonable standard of care, do not judge expert standards, evaluate only information available at the time, do not make retrospective conclusions, understand the variability in conclusions and recommendations that could be made from the same set of information/images, and have no financial incentive to reach one conclusion or the other, then and only then would the system be fair. The problem is that this is not happening. Peer review and expert review could be ethical and desirable, but not when expert witnesses are "hired guns."

The commentary mentions cases that violated the standard of care, but does not mention some of the available literature, including a New England Journal of Medicine article (1994;331:1493-1499). That research demonstrated a substantial variability of interpretations and recommendations for management by radiologists reading mammograms. Thus, variability is the norm and represents the standard of care. A truly impartial review would have to conclude that one expert opinion is not the only acceptable interpretation. The confidence in a specific interpretation is based on retrospective analysis with knowledge of future events such as the development of cancer. Prospectively, markedly differing recommendations for identical findings are clearly within the current standard of care.

The ACR extends its peer-review process for ethical violations to expert witnesses. Complaints can be made against either plaintiff or defense expert witnesses. As of January, five complaints were being evaluated. I expect that if more radiologists were aware of this process, substantially more complaints would be filed.
?Joel M. Schwartz, M.D., Nyack, NY