296
Letters
assigns the resolution of such disputes to juries. The burden of proof is only the preponderance of the evidence that the physician violated the appropriate standard of care. In a standard of preponderance of the evidence we accept that there will be a certain number of "incorrect" verdicts and that verdicts do not establish truth but only solve the operative question of who wins the case. This type of error is inherent in the legal system. Including this understanding in the method used in the research would make the conclusions of much greater practical use. I do not mean this comment to imply criticism of the obvious effort and skill Ward brought to this difficult issue and the real value of his advice to physicians (I assume the statement that human papilloma virus is "not" a likely cause of cervical cancer is a typographical error). However, I have a few replies to the comments of the other discussants. Kirkley confuses the "standard of care" required by the law with the practice patterns of the "20,000 to 30,000 members of the American College of Obstetricians and Gynecologists who actually establish the standard of care in their localities." The standard of care is not how the typical physician practices any more than it is how the typical driver drives. The typical driver is negligent some of the time. Good drivers and good physicians sometimes make mistakes, with terrible consequences. The standard of care is an abstract ideal, and it is possible for an entire profession or industry to fall below a standard of care at least some of the time. I am surprised that Kirkley's admonitions against changing medical records are seemingly based on the probability of being caught rather than the fact that changing records is a disgraceful, unethical act by anyone who claims to be a physician. I also question his statement that you "never tell a patient that you did wrong." Physicians owe patients a fiduciary duty to disclose errors. Failure to comply with this duty is itself actionable, and more practically may extend the statute of limitations under a theory of fraudulent concealment. As a professor I was appalled that Blanchard would try to use a department chair to "take a stand" against an expert testifying in litigation. Virtually all states have civil or criminal penalties for those who tamper with witnesses in civil litigation, and any decent university respects the academic freedom of its professors. Ward's article is a useful addition to the medical-legal literature. I only add that the real goal is not to avoid liability, but to avoid the i~ury that leads to the claim of liability. Vincent Brannigan University of Maryland, College Park, MD 20742
Reply To the Editors: I appreciate Brannigan's comments and attention to my manuscript. His comment concerning human papillomavirus was correct. The "not" was a typographic error. The sentence from my article should have read "Human papillomavirus is now considered
July 1992 Am J Obstet Gynecol
to be a likely cause of cervical cancer, even though Koch's postulates have not been fulfilled." I recognize the insightful comments regarding definitions of "indefensible" and "defensible." In this study all the claims reviewed were open claims and not settled cases. Judgments were made without the benefit of the opinion of a jury; therefore the third category referred to by Brannigan could not have been used. In reviewing a claim, if the medical evidence or lack of same revealed a breach in the standard of care resulting in damage, then the claim was deemed indefensible and settlement was advised. However, if malpractice did not exist, I classified the case as defensible. In these latter claims I recommend that the case be defended, even if a defendant's summary judgment was not obtained. Charles J. Ward, MD 465 Winn Way, Suite 140, Decatur, GA 30030
Laparoscopic hysterectomy: Reinventing the wheel? To the Editors: Laparoscopic surgery is back on the scene. Ten years ago it might have been predicted that laparoscopy would be a dying procedure replaced by more advanced assisted reproductive technologies. However, the development of conventionaP and laser2,3 laparoscopic accessories and the incorporation of video imaging technologies' into the armamentarium of the endoscopic operating theater has made it possible to perform more radical procedures safely and to establish training programs for advanced laparoscopy. On the other hand, aggressive marketing of medical treatments coupled with public knowledge fed by eager journalism may be creating a misinterpretation of "new" applications such as "laparoscopic hysterectomy." At a recent international scientific event one of the keynote speakers stated " ... none of my patients accept any longer the idea of conventional hysterectomy." These types of comments subsequently become headlines in women's magazines, proclaiming "New way of removing your womb." The situ~tion is reminiscent of Hans Christian Andersen's famous story, "The Emperor's New Clothes." Is this procedure new? Or is it in fact a laparoscopyassisted vaginal hysterectomy or sometimes a laparoscopy-monitored vaginal hysterectomy? An experienced vaginal surgeon can perform a vaginal hysterectomy (with or without adnexectomy") in
Letters
assigns the resolution of such disputes to juries. The burden of proof is only the preponderance of the evidence that the physician violated the appropriate standard of care. In a standard of preponderance of the evidence we accept that there will be a certain number of "incorrect" verdicts and that verdicts do not establish truth but only solve the operative question of who wins the case. This type of error is inherent in the legal system. Including this understanding in the method used in the research would make the conclusions of much greater practical use. I do not mean this comment to imply criticism of the obvious effort and skill Ward brought to this difficult issue and the real value of his advice to physicians (I assume the statement that human papilloma virus is "not" a likely cause of cervical cancer is a typographical error). However, I have a few replies to the comments of the other discussants. Kirkley confuses the "standard of care" required by the law with the practice patterns of the "20,000 to 30,000 members of the American College of Obstetricians and Gynecologists who actually establish the standard of care in their localities." The standard of care is not how the typical physician practices any more than it is how the typical driver drives. The typical driver is negligent some of the time. Good drivers and good physicians sometimes make mistakes, with terrible consequences. The standard of care is an abstract ideal, and it is possible for an entire profession or industry to fall below a standard of care at least some of the time. I am surprised that Kirkley's admonitions against changing medical records are seemingly based on the probability of being caught rather than the fact that changing records is a disgraceful, unethical act by anyone who claims to be a physician. I also question his statement that you "never tell a patient that you did wrong." Physicians owe patients a fiduciary duty to disclose errors. Failure to comply with this duty is itself actionable, and more practically may extend the statute of limitations under a theory of fraudulent concealment. As a professor I was appalled that Blanchard would try to use a department chair to "take a stand" against an expert testifying in litigation. Virtually all states have civil or criminal penalties for those who tamper with witnesses in civil litigation, and any decent university respects the academic freedom of its professors. Ward's article is a useful addition to the medical-legal literature. I only add that the real goal is not to avoid liability, but to avoid the i~ury that leads to the claim of liability. Vincent Brannigan University of Maryland, College Park, MD 20742
Reply To the Editors: I appreciate Brannigan's comments and attention to my manuscript. His comment concerning human papillomavirus was correct. The "not" was a typographic error. The sentence from my article should have read "Human papillomavirus is now considered
July 1992 Am J Obstet Gynecol
to be a likely cause of cervical cancer, even though Koch's postulates have not been fulfilled." I recognize the insightful comments regarding definitions of "indefensible" and "defensible." In this study all the claims reviewed were open claims and not settled cases. Judgments were made without the benefit of the opinion of a jury; therefore the third category referred to by Brannigan could not have been used. In reviewing a claim, if the medical evidence or lack of same revealed a breach in the standard of care resulting in damage, then the claim was deemed indefensible and settlement was advised. However, if malpractice did not exist, I classified the case as defensible. In these latter claims I recommend that the case be defended, even if a defendant's summary judgment was not obtained. Charles J. Ward, MD 465 Winn Way, Suite 140, Decatur, GA 30030
Laparoscopic hysterectomy: Reinventing the wheel? To the Editors: Laparoscopic surgery is back on the scene. Ten years ago it might have been predicted that laparoscopy would be a dying procedure replaced by more advanced assisted reproductive technologies. However, the development of conventionaP and laser2,3 laparoscopic accessories and the incorporation of video imaging technologies' into the armamentarium of the endoscopic operating theater has made it possible to perform more radical procedures safely and to establish training programs for advanced laparoscopy. On the other hand, aggressive marketing of medical treatments coupled with public knowledge fed by eager journalism may be creating a misinterpretation of "new" applications such as "laparoscopic hysterectomy." At a recent international scientific event one of the keynote speakers stated " ... none of my patients accept any longer the idea of conventional hysterectomy." These types of comments subsequently become headlines in women's magazines, proclaiming "New way of removing your womb." The situ~tion is reminiscent of Hans Christian Andersen's famous story, "The Emperor's New Clothes." Is this procedure new? Or is it in fact a laparoscopyassisted vaginal hysterectomy or sometimes a laparoscopy-monitored vaginal hysterectomy? An experienced vaginal surgeon can perform a vaginal hysterectomy (with or without adnexectomy") in
