Opioid Crisis: Defending Allegations of Opioid Prescription Malpractice: Avoiding Hindsight Bias
Written by Kristin Lausten
Over the last decade or so, in Louisiana and in other parts of the US, we have seen opioid use and addiction go from an “opioid malpractice issue” to an “opioid epidemic” to an “opioid crisis.” Lawsuits are proliferating. Physicians and doctors are now facing malpractice claims for prescribing opioids in the normal course of pain management. To the plaintiff’s bar, doctors are “easy targets” being characterized as out-of-touch, dated, duped, disabled, or dishonest over-prescribers. Juries often think all physicians are rich and the plaintiff has had his/her life “ruined” because they overmedicated and/or became addicted, and so on and so forth.
One key to defending against claims of prescription malpractice is to ensure that the jury properly understands foreseeability and avoids hindsight bias. This article discusses these issues with a focus on how Louisiana jury instructions can be used to combat the bias.
New Orleans Malpractice Defense: Malpractice Under Louisiana Law
Here in New Orleans, to succeed, a medical malpractice plaintiff must prove that the medical treatment fell below the standard of care expected of a physician in the physician’s medical specialty; and that there exists a causal relationship between the alleged negligent treatment and the injury sustained. Fusilier v. Dauterive, 2000-0151, 764 So. 2d 74 (La. Supreme Court 2000). See also La. R.S. 9:2794.
New Orleans Malpractice Defense: Avoiding Hindsight Bias
One of the more difficult aspects of defending any type of malpractice case is preventing the jury and/or judge from being contaminated by hindsight bias. Hindsight bias has three components that must be addressed and avoided:
- Foreseeability: Overestimating by parties, lawyers, judges, and juries what could have been predicted at the time the physician was exercising his or her medical judgment;
- Causation: Falsely believing that, because there was an injury or a bad result, such injury or bad result was knowable/predictable at the time the physician was exercising his or her medical judgment; and
- False standard of perfection: Holding the idea that the standard of foreseeability is perfection.
The first step in preventing hindsight bias is being aware of the problem and its three main components. Proper jury instructions are also a crucial method of combating hindsight bias. Here are, in pertinent part — see p. 9 — sample jury instructions taken from Judge Marilyn Castle out of the 15th Judicial District in Lafayette:
The general standard of care is set out as follows with a statement rejecting the false standard of perfection (emphasis added):
“A doctor who holds himself out as a specialist, and who undertakes service in a special branch of medical or surgical science, owes to his patient the duty of possessing that degree of learning and skill ordinarily possessed by specialists of good standing practicing in the same special field of medicine, under similar circumstances. A physician is not required to exercise the highest degree of skill and care possible. He or she is not an insurer or guarantor or results.”
The remaining aspect of the hindsight bias are addressed in this manner (again, emphasis added):
“The fact that a bad result, injury or complication follows medical treatment does not, in and of itself, raise a presumption of negligence. If the doctor in this case exercised the degree of care, skill and judgment required, the physician cannot be found to have practiced substandard medicine on the basis of complications or injuries sustained by the patient.
A doctor is not negligent if he fails to follow a course of treatment which, at a later date, may be proven to be the wiser course. The doctor is only responsible for exercising his/her best judgment and administering reasonable medical care under the circumstances that face him/her at that time. Information and equipment which was not available at the time of treatment of the patient, but later becomes available, is not to be considered in deciding whether or not the physician deviated from the applicable standard of care. Making a diagnosis is an act of physician judgment. Simply because a diagnosis may have been in error, does not in and of itself prove a breach of standard of care on the part of a physician, nor does it raise an inference of negligence.”
See also Van Buren v. Minor, Case No. 51,960-CA (La. App. 2nd Cir. April 11, 2018). As the jury instructions suggests, the defense practitioner must be vigilant to constantly focus the jury (and judge and expert) on what was the standard of care at the time the medical decisions were being made based on the then-known information. Being careful to distinguish the now-know from the then-known information is very important. It is easy to let the jury get confused. Every material fact must be properly placed temporally. Moreover, the practitioner must studiously quarantine the alleged breach of the standard care from the “bad result.”
Finally, special care must be taken with the experts. Did the expert truly understand what was actually known on the date in question? Would the expert’s opinion change if the defendant did not know certain facts or if the then-in-effect standard of care was considered? Has the expert injected a “should have known” standard? Is “correlation” being confused with “causation?”
In the current legal climate, hospitals, pain management clinics, physicians, pharmacists and pharmacies, among others, who dispense an increased number of opioids, as well as their malpractice carriers and liability insurers should prepare for potential involvement in opioid related litigation.
Prosecuting or Defending Against Opioid Cases in Louisiana: Have Questions? Contact New Orleans Attorney Kristin M. Lausten
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Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.