Commentary

Question: Charges of homicide have been successfully brought against doctors in the following situations except:

A. Withholding life-sustaining treatment.

B. Euthanasia.

C. Negligent treatment of a patient.

D. Overprescription of controlled substances.

Answer: A. Homicideis any act that causes the death of a human being with criminal intent and without legal justification. It comprises several crimes of varying severity, with murder being the most serious (requiring “malice aforethought”). Depending on the intent of the perpetrator and/or the presence of mitigating/aggravating circumstances, jurisdictions have subdivided homicide into categories such as first- and second-degree murder, voluntary and involuntary manslaughter, negligent homicide, and others.

Discontinuing futile medical treatment that ends with patient demise raises the specter of criminal prosecution for homicide. However, prosecution of doctors under such circumstances has failed. The seminal case is Barber v. Superior Court (147 Cal. App. 3d 1006 (1983)), in which the state of California brought murder charges against two doctors for discontinuing intravenous fluids and nutrition in a comatose patient.

The patient, a 55-year-old security guard, sustained a cardiopulmonary arrest following surgery for intestinal obstruction. Irreversible brain damage resulted, leaving him in a vegetative state. His family allegedly requested that life support measures and intravenous fluids be discontinued, to which the doctors complied, and the patient died 6 days later.

After a preliminary pretrial hearing, the magistrate dismissed the charges; but a trial court reinstated them. The court of appeals, however, viewed the defendant’s conduct in discontinuing intravenous fluids as an omission rather than an affirmative action, and found that a physician has no duty to continue treatment once it is proven to be ineffective.

The appeals court recognized that “a physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. … If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability.”

In rejecting the distinction between ordinary and extraordinary care, the court dismissed the prosecutor’s contention that unlike the respirator, fluids and nutrition represented ordinary care and therefore should never be withheld.

It concluded that “the petitioners’ omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.” And because no criminal liability attaches for failure to act (i.e., an omission) unless there is a legal duty to act affirmatively, it issued a writ of prohibition restraining the lower court from taking any further action on the matter.

The U.S. Supreme Court has since validated the distinction between “letting die” and an affirmative action taken with the intention to cause death, such as the administration of a lethal injection. The former is ethical and legal, conforming to medical norms, while the latter amounts to murder (Vacco v. Quill (117 S. Ct. 2293 (1997)).

With these developments, physicians therefore need not worry about criminal prosecution for carrying out Barber-like noneuthanasia, end-of-life actions that result in the death of their patients.

On the other hand, those who act directly to end the life of a patient, even one who freely requests death, may face criminal prosecution.

The most notorious example is that of retired Michigan pathologist Dr. Jack Kevorkian, who was found guilty of the second-degree murder of Thomas Youk, a 52-year-old race-car driver with terminal Lou Gehrig’s disease. Dr. Kevorkian injected a lethal mixture of Seconal, Anectine, and potassium chloride to end the patient’s life.

At trial, Dr. Kevorkian dismissed his lawyer and served ineffectively in his own defense, never taking the witness stand. Found guilty by a jury and sentenced to 10-25 years in prison, he served just more than 8 years until 2007, when he was released for good behavior. Previous charges by the state of Michigan against Dr. Kevorkian for assisting in the suicide of some 130 patients had proven unsuccessful.

This case spawned a nationwide debate on physician-directed deaths, with a few states now legalizing physician-assisted suicide, although euthanasia remains illegal throughout the nation.

In general, the remedy sought in a medical wrongful death case lies in a malpractice civil lawsuit against the negligent doctor. Sometimes, the plaintiff may assert that there was gross negligence where the conduct was particularly blameworthy, and if proven, the jury may award punitive damages.

Rarely, however, does the level of misconduct rise to that of criminal negligence. Here, the burden of proof for a conviction requires evidence beyond reasonable doubt, rather than the lower “more probable than not” evidentiary standard required in a civil lawsuit.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Charges of homicide have been successfully brought against doctors in the following situations except:

A. Withholding life-sustaining treatment.

B. Euthanasia.

C. Negligent treatment of a patient.

D. Overprescription of controlled substances.

Answer: A. Homicideis any act that causes the death of a human being with criminal intent and without legal justification. It comprises several crimes of varying severity, with murder being the most serious (requiring “malice aforethought”). Depending on the intent of the perpetrator and/or the presence of mitigating/aggravating circumstances, jurisdictions have subdivided homicide into categories such as first- and second-degree murder, voluntary and involuntary manslaughter, negligent homicide, and others.

Discontinuing futile medical treatment that ends with patient demise raises the specter of criminal prosecution for homicide. However, prosecution of doctors under such circumstances has failed. The seminal case is Barber v. Superior Court (147 Cal. App. 3d 1006 (1983)), in which the state of California brought murder charges against two doctors for discontinuing intravenous fluids and nutrition in a comatose patient.

The patient, a 55-year-old security guard, sustained a cardiopulmonary arrest following surgery for intestinal obstruction. Irreversible brain damage resulted, leaving him in a vegetative state. His family allegedly requested that life support measures and intravenous fluids be discontinued, to which the doctors complied, and the patient died 6 days later.

After a preliminary pretrial hearing, the magistrate dismissed the charges; but a trial court reinstated them. The court of appeals, however, viewed the defendant’s conduct in discontinuing intravenous fluids as an omission rather than an affirmative action, and found that a physician has no duty to continue treatment once it is proven to be ineffective.

The appeals court recognized that “a physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. … If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability.”

In rejecting the distinction between ordinary and extraordinary care, the court dismissed the prosecutor’s contention that unlike the respirator, fluids and nutrition represented ordinary care and therefore should never be withheld.

It concluded that “the petitioners’ omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.” And because no criminal liability attaches for failure to act (i.e., an omission) unless there is a legal duty to act affirmatively, it issued a writ of prohibition restraining the lower court from taking any further action on the matter.

The U.S. Supreme Court has since validated the distinction between “letting die” and an affirmative action taken with the intention to cause death, such as the administration of a lethal injection. The former is ethical and legal, conforming to medical norms, while the latter amounts to murder (Vacco v. Quill (117 S. Ct. 2293 (1997)).

With these developments, physicians therefore need not worry about criminal prosecution for carrying out Barber-like noneuthanasia, end-of-life actions that result in the death of their patients.

On the other hand, those who act directly to end the life of a patient, even one who freely requests death, may face criminal prosecution.

The most notorious example is that of retired Michigan pathologist Dr. Jack Kevorkian, who was found guilty of the second-degree murder of Thomas Youk, a 52-year-old race-car driver with terminal Lou Gehrig’s disease. Dr. Kevorkian injected a lethal mixture of Seconal, Anectine, and potassium chloride to end the patient’s life.

At trial, Dr. Kevorkian dismissed his lawyer and served ineffectively in his own defense, never taking the witness stand. Found guilty by a jury and sentenced to 10-25 years in prison, he served just more than 8 years until 2007, when he was released for good behavior. Previous charges by the state of Michigan against Dr. Kevorkian for assisting in the suicide of some 130 patients had proven unsuccessful.

This case spawned a nationwide debate on physician-directed deaths, with a few states now legalizing physician-assisted suicide, although euthanasia remains illegal throughout the nation.

In general, the remedy sought in a medical wrongful death case lies in a malpractice civil lawsuit against the negligent doctor. Sometimes, the plaintiff may assert that there was gross negligence where the conduct was particularly blameworthy, and if proven, the jury may award punitive damages.

Rarely, however, does the level of misconduct rise to that of criminal negligence. Here, the burden of proof for a conviction requires evidence beyond reasonable doubt, rather than the lower “more probable than not” evidentiary standard required in a civil lawsuit.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: Charges of homicide have been successfully brought against doctors in the following situations except:

A. Withholding life-sustaining treatment.

B. Euthanasia.

C. Negligent treatment of a patient.

D. Overprescription of controlled substances.

Answer: A. Homicideis any act that causes the death of a human being with criminal intent and without legal justification. It comprises several crimes of varying severity, with murder being the most serious (requiring “malice aforethought”). Depending on the intent of the perpetrator and/or the presence of mitigating/aggravating circumstances, jurisdictions have subdivided homicide into categories such as first- and second-degree murder, voluntary and involuntary manslaughter, negligent homicide, and others.

Discontinuing futile medical treatment that ends with patient demise raises the specter of criminal prosecution for homicide. However, prosecution of doctors under such circumstances has failed. The seminal case is Barber v. Superior Court (147 Cal. App. 3d 1006 (1983)), in which the state of California brought murder charges against two doctors for discontinuing intravenous fluids and nutrition in a comatose patient.

The patient, a 55-year-old security guard, sustained a cardiopulmonary arrest following surgery for intestinal obstruction. Irreversible brain damage resulted, leaving him in a vegetative state. His family allegedly requested that life support measures and intravenous fluids be discontinued, to which the doctors complied, and the patient died 6 days later.

After a preliminary pretrial hearing, the magistrate dismissed the charges; but a trial court reinstated them. The court of appeals, however, viewed the defendant’s conduct in discontinuing intravenous fluids as an omission rather than an affirmative action, and found that a physician has no duty to continue treatment once it is proven to be ineffective.

The appeals court recognized that “a physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. … If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability.”

In rejecting the distinction between ordinary and extraordinary care, the court dismissed the prosecutor’s contention that unlike the respirator, fluids and nutrition represented ordinary care and therefore should never be withheld.

It concluded that “the petitioners’ omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.” And because no criminal liability attaches for failure to act (i.e., an omission) unless there is a legal duty to act affirmatively, it issued a writ of prohibition restraining the lower court from taking any further action on the matter.

The U.S. Supreme Court has since validated the distinction between “letting die” and an affirmative action taken with the intention to cause death, such as the administration of a lethal injection. The former is ethical and legal, conforming to medical norms, while the latter amounts to murder (Vacco v. Quill (117 S. Ct. 2293 (1997)).

With these developments, physicians therefore need not worry about criminal prosecution for carrying out Barber-like noneuthanasia, end-of-life actions that result in the death of their patients.

On the other hand, those who act directly to end the life of a patient, even one who freely requests death, may face criminal prosecution.

The most notorious example is that of retired Michigan pathologist Dr. Jack Kevorkian, who was found guilty of the second-degree murder of Thomas Youk, a 52-year-old race-car driver with terminal Lou Gehrig’s disease. Dr. Kevorkian injected a lethal mixture of Seconal, Anectine, and potassium chloride to end the patient’s life.

At trial, Dr. Kevorkian dismissed his lawyer and served ineffectively in his own defense, never taking the witness stand. Found guilty by a jury and sentenced to 10-25 years in prison, he served just more than 8 years until 2007, when he was released for good behavior. Previous charges by the state of Michigan against Dr. Kevorkian for assisting in the suicide of some 130 patients had proven unsuccessful.

This case spawned a nationwide debate on physician-directed deaths, with a few states now legalizing physician-assisted suicide, although euthanasia remains illegal throughout the nation.

In general, the remedy sought in a medical wrongful death case lies in a malpractice civil lawsuit against the negligent doctor. Sometimes, the plaintiff may assert that there was gross negligence where the conduct was particularly blameworthy, and if proven, the jury may award punitive damages.

Rarely, however, does the level of misconduct rise to that of criminal negligence. Here, the burden of proof for a conviction requires evidence beyond reasonable doubt, rather than the lower “more probable than not” evidentiary standard required in a civil lawsuit.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

One of my pet peeves is when a patient or colleague speaks ill of another health care provider. I find it unbecoming behavior that often (though not always) speaks more to the character of the speaker than that of the object of anger/derision/dissatisfaction. I recently had the misfortune of interacting with a nurse practitioner who behaved in this manner. (The evidence of my hypocrisy does not escape me.)

A patient had been having some vague complaints for about 5 years, including myalgias, headaches, and fatigue. She remembers a tick bite that preceded the onset of symptoms. She tested negative for Lyme disease and other tick-borne illnesses multiple times, but after seeing many different doctors she finally saw an infectious disease doctor who often treats patients for what he diagnoses as a chronic Lyme infection. The patient was on antibiotics for about 5 years. But because she didn’t really feel any better, she started questioning the diagnosis.

I explained to the patient why I thought that fibromyalgia might explain her symptoms. She looked this up on the Internet and found that the disease described her symptoms completely. She was happy to stop antibiotic treatment. However, in the interest of leaving no stone unturned, I referred her to a neurologist for her headaches.

The nurse practitioner who evaluated her sent her for a brain single-photon emission computed tomography scan that showed “multifocal regions of decreased uptake, distribution suggestive of vasculitis or multi-infarct dementia.” The NP then informed the patient of this result, said it was consistent with CNS Lyme, and asked her to return to the infectious disease doctor who then put her back on oral antibiotics.

The patient brought this all to my attention, asking for an opinion. I thought she probably had small vessel changes because she had hyperlipidemia and was a heavy smoker. But I was curious about the decision to label this as CNS Lyme, so I thought I would touch base with the NP. What ensued was possibly one of the most disturbing conversations I’ve had with another health care provider since I started practice.

She didn’t think she needed a lumbar puncture to confirm her diagnosis. She hadn’t bothered to order Lyme serologies or to look for previous results. “We take the patient’s word for it,” she smugly told me. She had full confidence that her diagnosis was correct, because “we see this all the time.” When I said I thought, common things being common, that the cigarette smoking was the most likely culprit for the changes, her response was: “Common things being common, Lyme disease is pretty common around here.” On the question of why the patient was getting oral antibiotics rather than IV antibiotics per Infectious Diseases Society of America guidelines for CNS Lyme, the response I got was again, that she sees this “all the time, and they do respond to oral antibiotics.”

I think the worst part was that when I pointed out that the preponderance of other doctors (two primary care physicians, two infectious disease doctors, another neurologist, another rheumatologist, and myself) did not agree with the diagnosis, her reply was to say that “the ID docs around here are way too conservative when it comes to treating chronic Lyme.”

Of course, she could very well be correct in her diagnosis. However, the conceit with which she so readily accused the ID specialists of being “too conservative” when she clearly did not do the necessary work herself (LP, serologies, etc.) just rubs me the wrong way. Lazy and arrogant make a horrible combination.

I politely disagreed and ended the conversation, but I was so worked up about the situation that I decided to write about it, thereby demonstrating the same bad behavior I claim to dislike. I am afraid at this stage in my professional development magnanimity is not a quality that I yet possess. Hopefully, I will not have many opportunities to demonstrate my lack of it.

Dr. Chan practices rheumatology in Pawtucket, R.I.

One of my pet peeves is when a patient or colleague speaks ill of another health care provider. I find it unbecoming behavior that often (though not always) speaks more to the character of the speaker than that of the object of anger/derision/dissatisfaction. I recently had the misfortune of interacting with a nurse practitioner who behaved in this manner. (The evidence of my hypocrisy does not escape me.)

A patient had been having some vague complaints for about 5 years, including myalgias, headaches, and fatigue. She remembers a tick bite that preceded the onset of symptoms. She tested negative for Lyme disease and other tick-borne illnesses multiple times, but after seeing many different doctors she finally saw an infectious disease doctor who often treats patients for what he diagnoses as a chronic Lyme infection. The patient was on antibiotics for about 5 years. But because she didn’t really feel any better, she started questioning the diagnosis.

I explained to the patient why I thought that fibromyalgia might explain her symptoms. She looked this up on the Internet and found that the disease described her symptoms completely. She was happy to stop antibiotic treatment. However, in the interest of leaving no stone unturned, I referred her to a neurologist for her headaches.

The nurse practitioner who evaluated her sent her for a brain single-photon emission computed tomography scan that showed “multifocal regions of decreased uptake, distribution suggestive of vasculitis or multi-infarct dementia.” The NP then informed the patient of this result, said it was consistent with CNS Lyme, and asked her to return to the infectious disease doctor who then put her back on oral antibiotics.

The patient brought this all to my attention, asking for an opinion. I thought she probably had small vessel changes because she had hyperlipidemia and was a heavy smoker. But I was curious about the decision to label this as CNS Lyme, so I thought I would touch base with the NP. What ensued was possibly one of the most disturbing conversations I’ve had with another health care provider since I started practice.

She didn’t think she needed a lumbar puncture to confirm her diagnosis. She hadn’t bothered to order Lyme serologies or to look for previous results. “We take the patient’s word for it,” she smugly told me. She had full confidence that her diagnosis was correct, because “we see this all the time.” When I said I thought, common things being common, that the cigarette smoking was the most likely culprit for the changes, her response was: “Common things being common, Lyme disease is pretty common around here.” On the question of why the patient was getting oral antibiotics rather than IV antibiotics per Infectious Diseases Society of America guidelines for CNS Lyme, the response I got was again, that she sees this “all the time, and they do respond to oral antibiotics.”

I think the worst part was that when I pointed out that the preponderance of other doctors (two primary care physicians, two infectious disease doctors, another neurologist, another rheumatologist, and myself) did not agree with the diagnosis, her reply was to say that “the ID docs around here are way too conservative when it comes to treating chronic Lyme.”

Of course, she could very well be correct in her diagnosis. However, the conceit with which she so readily accused the ID specialists of being “too conservative” when she clearly did not do the necessary work herself (LP, serologies, etc.) just rubs me the wrong way. Lazy and arrogant make a horrible combination.

I politely disagreed and ended the conversation, but I was so worked up about the situation that I decided to write about it, thereby demonstrating the same bad behavior I claim to dislike. I am afraid at this stage in my professional development magnanimity is not a quality that I yet possess. Hopefully, I will not have many opportunities to demonstrate my lack of it.

Dr. Chan practices rheumatology in Pawtucket, R.I.

One of my pet peeves is when a patient or colleague speaks ill of another health care provider. I find it unbecoming behavior that often (though not always) speaks more to the character of the speaker than that of the object of anger/derision/dissatisfaction. I recently had the misfortune of interacting with a nurse practitioner who behaved in this manner. (The evidence of my hypocrisy does not escape me.)

A patient had been having some vague complaints for about 5 years, including myalgias, headaches, and fatigue. She remembers a tick bite that preceded the onset of symptoms. She tested negative for Lyme disease and other tick-borne illnesses multiple times, but after seeing many different doctors she finally saw an infectious disease doctor who often treats patients for what he diagnoses as a chronic Lyme infection. The patient was on antibiotics for about 5 years. But because she didn’t really feel any better, she started questioning the diagnosis.

I explained to the patient why I thought that fibromyalgia might explain her symptoms. She looked this up on the Internet and found that the disease described her symptoms completely. She was happy to stop antibiotic treatment. However, in the interest of leaving no stone unturned, I referred her to a neurologist for her headaches.

The nurse practitioner who evaluated her sent her for a brain single-photon emission computed tomography scan that showed “multifocal regions of decreased uptake, distribution suggestive of vasculitis or multi-infarct dementia.” The NP then informed the patient of this result, said it was consistent with CNS Lyme, and asked her to return to the infectious disease doctor who then put her back on oral antibiotics.

The patient brought this all to my attention, asking for an opinion. I thought she probably had small vessel changes because she had hyperlipidemia and was a heavy smoker. But I was curious about the decision to label this as CNS Lyme, so I thought I would touch base with the NP. What ensued was possibly one of the most disturbing conversations I’ve had with another health care provider since I started practice.

She didn’t think she needed a lumbar puncture to confirm her diagnosis. She hadn’t bothered to order Lyme serologies or to look for previous results. “We take the patient’s word for it,” she smugly told me. She had full confidence that her diagnosis was correct, because “we see this all the time.” When I said I thought, common things being common, that the cigarette smoking was the most likely culprit for the changes, her response was: “Common things being common, Lyme disease is pretty common around here.” On the question of why the patient was getting oral antibiotics rather than IV antibiotics per Infectious Diseases Society of America guidelines for CNS Lyme, the response I got was again, that she sees this “all the time, and they do respond to oral antibiotics.”

I think the worst part was that when I pointed out that the preponderance of other doctors (two primary care physicians, two infectious disease doctors, another neurologist, another rheumatologist, and myself) did not agree with the diagnosis, her reply was to say that “the ID docs around here are way too conservative when it comes to treating chronic Lyme.”

Of course, she could very well be correct in her diagnosis. However, the conceit with which she so readily accused the ID specialists of being “too conservative” when she clearly did not do the necessary work herself (LP, serologies, etc.) just rubs me the wrong way. Lazy and arrogant make a horrible combination.

I politely disagreed and ended the conversation, but I was so worked up about the situation that I decided to write about it, thereby demonstrating the same bad behavior I claim to dislike. I am afraid at this stage in my professional development magnanimity is not a quality that I yet possess. Hopefully, I will not have many opportunities to demonstrate my lack of it.

Dr. Chan practices rheumatology in Pawtucket, R.I.

The holiday season, despite the hustle and bustle, can be a time of reflection. Thanksgiving is a time to reflect on what you have. The secular version of Christmas is a deep plunge into materialism and getting the things you desire. Then come those New Year’s resolutions in which you swear off material things and promise yourself you will become the person you have always wanted to be.

For those in academic settings educating the next cohort of physicians, this time of year has its own rituals. Undergraduate and medical school applications are being reviewed. Medical students are interviewing for residencies. Match day for residents seeking subspecialty fellowships occurs in mid-December. The other residents are starting to interview for real jobs. Overall, a vast undertaking occurs in which talents and aspirations are matched with finite and practical opportunities.

My goal is to advocate for the health of children, so I am concerned about how well pediatrics attracts the best and brightest minds. The best training programs in the world are still going to produce mediocre doctors if we start with mediocre talent. The stakes in recruiting talent are huge. The Washington Post has been running a series on the disappearance of the middle class. Some articles have lamented that the finance sector has recently siphoned off the best and brightest minds to make money by pushing money, rather than creating new technology, products, and jobs (“A black hole for our best and brightest,” by Jim Tankersley on Dec. 14, 2014). My second concern is nourishing the ideals and aspirations of those physician seedlings. Few people keep all their New Year’s resolutions for the entire year, but even partial credit can be important progress in a balanced life.

First, we need to attract people to science. There is a recognized shortage of high school students going into STEM fields (science, technology, engineering, and math). Various programs have been created to attract high school students, and particularly women, to those fields (“Women flocking to statistics, the newly hot, high-tech field of data science,” by Brigid Schulte, the Washington Post, Dec. 19, 2014). This then needs to be reinforced in college. For instance, the analysis of big data in health care is a burgeoning field. We need statisticians who can do the work.

Then we need to attract people to medicine. I’ve been in a few conversations recently about a book titled “Doctored: The Disillusionment of the American Physician,” by Dr. Sandeep Jauhar. I haven’t read more than a few excerpts from the book. An abbreviated version is the author’s essay, “Why Doctors Are Sick of Their Profession,” in the Wall Street Journal (Aug. 29, 2014).

There were enough inaccuracies in that article to dissuade me from reading further, but your mileage may differ. There are data to both support and refute most of his assertions. I believe he is correct that there have been some Faustian bargains made by the past two generations of doctors. Medicine welcomed the improved revenues from Medicare and Medicaid coverage. Those programs improved access, justice, health outcomes, and especially doctors’ incomes, but at a steep price to society. The Golden Goose Dr. Jauhar cited was indeed killed. The following generation of doctors has had to deal with managed care, preapprovals, and denials of payment, along with other cost controls. It was irrational to think that all that money from the government to physicians was going to flow indefinitely without strings. In a related development, the resulting paperwork has crushed solo office practice. Rather than being entrepreneurs, recently boarded pediatricians are trending toward larger group practices and salaried positions. So that affects the degree of independence in a medical career.

In pediatrics, physicians invest considerable time to open career paths into subspecialty areas that interest them, even if the income and lifestyle aren’t better and don’t justify the time and expense of further training. Pediatric hospital medicine is progressing toward becoming a boarded subspecialty with 2-year fellowships. Will that attract the best and brightest of the residents?

Continuing medical education is needed to maintain a knowledge base and a skill set. I assert there also needs to be continuing examination and reinforcement of one’s ideals and life goals. As a pediatrician, I am biased toward believing that maintaining a recommended daily allowance of that activity outperforms making New Year’s resolutions. We all know that crash diets rarely work in the long run.

What practical steps can be taken in the pediatrician’s office? Put up posters that encourage STEM education. Ask adolescents about their plans. The health and life expectancy of your patient will be related far more to his or her career choice than to the discovery of the next medicine to treat chronic hepatitis C. Spending just a moment of each adolescent well visit to explore his/her aspirations also may be just the medicine you need to avoid disillusionment. Maybe you will even inspire a bright teenager to become a pediatrician.

Dr. Powell is a pediatric hospitalist and clinical ethics consultant living in St. Louis. He is also listserv moderator for the American Academy of Pediatrics Section on Hospital Medicine. E-mail him at [email protected].

The holiday season, despite the hustle and bustle, can be a time of reflection. Thanksgiving is a time to reflect on what you have. The secular version of Christmas is a deep plunge into materialism and getting the things you desire. Then come those New Year’s resolutions in which you swear off material things and promise yourself you will become the person you have always wanted to be.

For those in academic settings educating the next cohort of physicians, this time of year has its own rituals. Undergraduate and medical school applications are being reviewed. Medical students are interviewing for residencies. Match day for residents seeking subspecialty fellowships occurs in mid-December. The other residents are starting to interview for real jobs. Overall, a vast undertaking occurs in which talents and aspirations are matched with finite and practical opportunities.

My goal is to advocate for the health of children, so I am concerned about how well pediatrics attracts the best and brightest minds. The best training programs in the world are still going to produce mediocre doctors if we start with mediocre talent. The stakes in recruiting talent are huge. The Washington Post has been running a series on the disappearance of the middle class. Some articles have lamented that the finance sector has recently siphoned off the best and brightest minds to make money by pushing money, rather than creating new technology, products, and jobs (“A black hole for our best and brightest,” by Jim Tankersley on Dec. 14, 2014). My second concern is nourishing the ideals and aspirations of those physician seedlings. Few people keep all their New Year’s resolutions for the entire year, but even partial credit can be important progress in a balanced life.

First, we need to attract people to science. There is a recognized shortage of high school students going into STEM fields (science, technology, engineering, and math). Various programs have been created to attract high school students, and particularly women, to those fields (“Women flocking to statistics, the newly hot, high-tech field of data science,” by Brigid Schulte, the Washington Post, Dec. 19, 2014). This then needs to be reinforced in college. For instance, the analysis of big data in health care is a burgeoning field. We need statisticians who can do the work.

Then we need to attract people to medicine. I’ve been in a few conversations recently about a book titled “Doctored: The Disillusionment of the American Physician,” by Dr. Sandeep Jauhar. I haven’t read more than a few excerpts from the book. An abbreviated version is the author’s essay, “Why Doctors Are Sick of Their Profession,” in the Wall Street Journal (Aug. 29, 2014).

There were enough inaccuracies in that article to dissuade me from reading further, but your mileage may differ. There are data to both support and refute most of his assertions. I believe he is correct that there have been some Faustian bargains made by the past two generations of doctors. Medicine welcomed the improved revenues from Medicare and Medicaid coverage. Those programs improved access, justice, health outcomes, and especially doctors’ incomes, but at a steep price to society. The Golden Goose Dr. Jauhar cited was indeed killed. The following generation of doctors has had to deal with managed care, preapprovals, and denials of payment, along with other cost controls. It was irrational to think that all that money from the government to physicians was going to flow indefinitely without strings. In a related development, the resulting paperwork has crushed solo office practice. Rather than being entrepreneurs, recently boarded pediatricians are trending toward larger group practices and salaried positions. So that affects the degree of independence in a medical career.

In pediatrics, physicians invest considerable time to open career paths into subspecialty areas that interest them, even if the income and lifestyle aren’t better and don’t justify the time and expense of further training. Pediatric hospital medicine is progressing toward becoming a boarded subspecialty with 2-year fellowships. Will that attract the best and brightest of the residents?

Continuing medical education is needed to maintain a knowledge base and a skill set. I assert there also needs to be continuing examination and reinforcement of one’s ideals and life goals. As a pediatrician, I am biased toward believing that maintaining a recommended daily allowance of that activity outperforms making New Year’s resolutions. We all know that crash diets rarely work in the long run.

What practical steps can be taken in the pediatrician’s office? Put up posters that encourage STEM education. Ask adolescents about their plans. The health and life expectancy of your patient will be related far more to his or her career choice than to the discovery of the next medicine to treat chronic hepatitis C. Spending just a moment of each adolescent well visit to explore his/her aspirations also may be just the medicine you need to avoid disillusionment. Maybe you will even inspire a bright teenager to become a pediatrician.

Dr. Powell is a pediatric hospitalist and clinical ethics consultant living in St. Louis. He is also listserv moderator for the American Academy of Pediatrics Section on Hospital Medicine. E-mail him at [email protected].

The holiday season, despite the hustle and bustle, can be a time of reflection. Thanksgiving is a time to reflect on what you have. The secular version of Christmas is a deep plunge into materialism and getting the things you desire. Then come those New Year’s resolutions in which you swear off material things and promise yourself you will become the person you have always wanted to be.

For those in academic settings educating the next cohort of physicians, this time of year has its own rituals. Undergraduate and medical school applications are being reviewed. Medical students are interviewing for residencies. Match day for residents seeking subspecialty fellowships occurs in mid-December. The other residents are starting to interview for real jobs. Overall, a vast undertaking occurs in which talents and aspirations are matched with finite and practical opportunities.

My goal is to advocate for the health of children, so I am concerned about how well pediatrics attracts the best and brightest minds. The best training programs in the world are still going to produce mediocre doctors if we start with mediocre talent. The stakes in recruiting talent are huge. The Washington Post has been running a series on the disappearance of the middle class. Some articles have lamented that the finance sector has recently siphoned off the best and brightest minds to make money by pushing money, rather than creating new technology, products, and jobs (“A black hole for our best and brightest,” by Jim Tankersley on Dec. 14, 2014). My second concern is nourishing the ideals and aspirations of those physician seedlings. Few people keep all their New Year’s resolutions for the entire year, but even partial credit can be important progress in a balanced life.

First, we need to attract people to science. There is a recognized shortage of high school students going into STEM fields (science, technology, engineering, and math). Various programs have been created to attract high school students, and particularly women, to those fields (“Women flocking to statistics, the newly hot, high-tech field of data science,” by Brigid Schulte, the Washington Post, Dec. 19, 2014). This then needs to be reinforced in college. For instance, the analysis of big data in health care is a burgeoning field. We need statisticians who can do the work.

Then we need to attract people to medicine. I’ve been in a few conversations recently about a book titled “Doctored: The Disillusionment of the American Physician,” by Dr. Sandeep Jauhar. I haven’t read more than a few excerpts from the book. An abbreviated version is the author’s essay, “Why Doctors Are Sick of Their Profession,” in the Wall Street Journal (Aug. 29, 2014).

There were enough inaccuracies in that article to dissuade me from reading further, but your mileage may differ. There are data to both support and refute most of his assertions. I believe he is correct that there have been some Faustian bargains made by the past two generations of doctors. Medicine welcomed the improved revenues from Medicare and Medicaid coverage. Those programs improved access, justice, health outcomes, and especially doctors’ incomes, but at a steep price to society. The Golden Goose Dr. Jauhar cited was indeed killed. The following generation of doctors has had to deal with managed care, preapprovals, and denials of payment, along with other cost controls. It was irrational to think that all that money from the government to physicians was going to flow indefinitely without strings. In a related development, the resulting paperwork has crushed solo office practice. Rather than being entrepreneurs, recently boarded pediatricians are trending toward larger group practices and salaried positions. So that affects the degree of independence in a medical career.

In pediatrics, physicians invest considerable time to open career paths into subspecialty areas that interest them, even if the income and lifestyle aren’t better and don’t justify the time and expense of further training. Pediatric hospital medicine is progressing toward becoming a boarded subspecialty with 2-year fellowships. Will that attract the best and brightest of the residents?

Continuing medical education is needed to maintain a knowledge base and a skill set. I assert there also needs to be continuing examination and reinforcement of one’s ideals and life goals. As a pediatrician, I am biased toward believing that maintaining a recommended daily allowance of that activity outperforms making New Year’s resolutions. We all know that crash diets rarely work in the long run.

What practical steps can be taken in the pediatrician’s office? Put up posters that encourage STEM education. Ask adolescents about their plans. The health and life expectancy of your patient will be related far more to his or her career choice than to the discovery of the next medicine to treat chronic hepatitis C. Spending just a moment of each adolescent well visit to explore his/her aspirations also may be just the medicine you need to avoid disillusionment. Maybe you will even inspire a bright teenager to become a pediatrician.

Dr. Powell is a pediatric hospitalist and clinical ethics consultant living in St. Louis. He is also listserv moderator for the American Academy of Pediatrics Section on Hospital Medicine. E-mail him at [email protected].

Most physicians can recall the impressive x-ray of the rickets rosary or the flared radial head seen in medical school. On almost every exam, there was an a reference to the infant who was solely breastfed which led to seizures and abnormal finding on physical exam, but in practice, most of us would be hard pressed to recall an infant that presented with any of those symptoms.

With recent guideline changes to require that all infants be supplemented with vitamin D from birth, extreme presentations of vitamin D deficiency such as rickets are rare, but has vitamin D deficiency really gone away?

It is hard to pin down the prevalence of vitamin D deficiency in adolescents; it depends on the cut-off you use. In one study of 307 healthy Boston adolescents presenting for primary care, 24% were vitamin D deficient (serum 25[OH]D level, ≤15 ng/mL); of these 4.6% were severely vitamin D deficient (25[OH]D level, ≤8 ng/mL) (Arch. Pediatr. Adolesc. Med. 2004;158:531-7). Broader studies have demonstrated the prevalence of vitamin D deficiency to be 7% for adolescent males aged 14-18 years and 10% for females that age (National Center for Health Statistics Data Brief No. 59, March 2011). This makes sense given that the natural sources of vitamin D are oily fishes such as salmon and sardines, cod liver oil, liver, egg yolk, and organ meat, none of which are big favorites in the adolescent population.

Other factors that contribute to the rise in D deficiency are the promotion of sunscreen use to block UV rays which are essential for cutaneous synthesis. Skin cancer prevention and the promotion of the use of sunscreen and a direct correlation of lower vitamin D levels have been identified(Am. J. Clin. Nutr. 2008;88:1519-27).

Obesity plays a unique role, in that it causes sequestration of the vitamin D into the fat cells. With the dramatic rise in adolescent obesity plus poor nutritional intake, vitamin D deficiency is the natural result.

Clinically it is easy for vitamin D deficiency to go unnoticed. Bones have mineralized, so the typical changes seen in the infant do not occur in the adolescent. But what is apparent is the generalized fatigue, muscle or bone pain, and increased upper respiratory infections. Adolescents with low vitamin D levels also are at increased risk for hypertension, elevated blood sugars, and metabolic syndrome.

Screening for vitamin D deficiency is imperative for the adolescent age group who have been identified to have risk factors because the deficiency can compound other illnesses, prevents appropriate bone mineralization, and decreases the patient’s generalized sense of well-being. Serum 25(OH)D has a long half-life and is a better predictor of serum levels (Am. J. Clin. Nutr. 2008;88:582S-6S).

Supplementation of Vitamin D should be in the form of D₃, which has been shown to be more efficient in raising the serum level (Am. J. Clin. Nutr. 2012;95:1357-64), and dose will vary depending on the severity. Complimenting it with a calcium supplement also will improve bone mineralization and absorption.

Vitamin D deficiency is not a thing of the past. A simple nutritional review with every encounter allows for the educational opportunity for healthy eating and appropriate supplementation. The patient with recurrent upper respiratory infections should be encouraged to maintain a daily intake of at least 600 IU, but in patients with increased risk factors an actual blood test should be done to determine the amount that should be prescribed.

Dr. Pearce is a pediatrician in Frankfort, Ill. She had no relevant financial disclosures. E-mail her at [email protected]. Scan this QR code or go to pediatricnews.com to view similar articles.

Most physicians can recall the impressive x-ray of the rickets rosary or the flared radial head seen in medical school. On almost every exam, there was an a reference to the infant who was solely breastfed which led to seizures and abnormal finding on physical exam, but in practice, most of us would be hard pressed to recall an infant that presented with any of those symptoms.

With recent guideline changes to require that all infants be supplemented with vitamin D from birth, extreme presentations of vitamin D deficiency such as rickets are rare, but has vitamin D deficiency really gone away?

It is hard to pin down the prevalence of vitamin D deficiency in adolescents; it depends on the cut-off you use. In one study of 307 healthy Boston adolescents presenting for primary care, 24% were vitamin D deficient (serum 25[OH]D level, ≤15 ng/mL); of these 4.6% were severely vitamin D deficient (25[OH]D level, ≤8 ng/mL) (Arch. Pediatr. Adolesc. Med. 2004;158:531-7). Broader studies have demonstrated the prevalence of vitamin D deficiency to be 7% for adolescent males aged 14-18 years and 10% for females that age (National Center for Health Statistics Data Brief No. 59, March 2011). This makes sense given that the natural sources of vitamin D are oily fishes such as salmon and sardines, cod liver oil, liver, egg yolk, and organ meat, none of which are big favorites in the adolescent population.

Other factors that contribute to the rise in D deficiency are the promotion of sunscreen use to block UV rays which are essential for cutaneous synthesis. Skin cancer prevention and the promotion of the use of sunscreen and a direct correlation of lower vitamin D levels have been identified(Am. J. Clin. Nutr. 2008;88:1519-27).

Obesity plays a unique role, in that it causes sequestration of the vitamin D into the fat cells. With the dramatic rise in adolescent obesity plus poor nutritional intake, vitamin D deficiency is the natural result.

Clinically it is easy for vitamin D deficiency to go unnoticed. Bones have mineralized, so the typical changes seen in the infant do not occur in the adolescent. But what is apparent is the generalized fatigue, muscle or bone pain, and increased upper respiratory infections. Adolescents with low vitamin D levels also are at increased risk for hypertension, elevated blood sugars, and metabolic syndrome.

Screening for vitamin D deficiency is imperative for the adolescent age group who have been identified to have risk factors because the deficiency can compound other illnesses, prevents appropriate bone mineralization, and decreases the patient’s generalized sense of well-being. Serum 25(OH)D has a long half-life and is a better predictor of serum levels (Am. J. Clin. Nutr. 2008;88:582S-6S).

Supplementation of Vitamin D should be in the form of D₃, which has been shown to be more efficient in raising the serum level (Am. J. Clin. Nutr. 2012;95:1357-64), and dose will vary depending on the severity. Complimenting it with a calcium supplement also will improve bone mineralization and absorption.

Vitamin D deficiency is not a thing of the past. A simple nutritional review with every encounter allows for the educational opportunity for healthy eating and appropriate supplementation. The patient with recurrent upper respiratory infections should be encouraged to maintain a daily intake of at least 600 IU, but in patients with increased risk factors an actual blood test should be done to determine the amount that should be prescribed.

Dr. Pearce is a pediatrician in Frankfort, Ill. She had no relevant financial disclosures. E-mail her at [email protected]. Scan this QR code or go to pediatricnews.com to view similar articles.

Most physicians can recall the impressive x-ray of the rickets rosary or the flared radial head seen in medical school. On almost every exam, there was an a reference to the infant who was solely breastfed which led to seizures and abnormal finding on physical exam, but in practice, most of us would be hard pressed to recall an infant that presented with any of those symptoms.

With recent guideline changes to require that all infants be supplemented with vitamin D from birth, extreme presentations of vitamin D deficiency such as rickets are rare, but has vitamin D deficiency really gone away?

It is hard to pin down the prevalence of vitamin D deficiency in adolescents; it depends on the cut-off you use. In one study of 307 healthy Boston adolescents presenting for primary care, 24% were vitamin D deficient (serum 25[OH]D level, ≤15 ng/mL); of these 4.6% were severely vitamin D deficient (25[OH]D level, ≤8 ng/mL) (Arch. Pediatr. Adolesc. Med. 2004;158:531-7). Broader studies have demonstrated the prevalence of vitamin D deficiency to be 7% for adolescent males aged 14-18 years and 10% for females that age (National Center for Health Statistics Data Brief No. 59, March 2011). This makes sense given that the natural sources of vitamin D are oily fishes such as salmon and sardines, cod liver oil, liver, egg yolk, and organ meat, none of which are big favorites in the adolescent population.

Other factors that contribute to the rise in D deficiency are the promotion of sunscreen use to block UV rays which are essential for cutaneous synthesis. Skin cancer prevention and the promotion of the use of sunscreen and a direct correlation of lower vitamin D levels have been identified(Am. J. Clin. Nutr. 2008;88:1519-27).

Obesity plays a unique role, in that it causes sequestration of the vitamin D into the fat cells. With the dramatic rise in adolescent obesity plus poor nutritional intake, vitamin D deficiency is the natural result.

Clinically it is easy for vitamin D deficiency to go unnoticed. Bones have mineralized, so the typical changes seen in the infant do not occur in the adolescent. But what is apparent is the generalized fatigue, muscle or bone pain, and increased upper respiratory infections. Adolescents with low vitamin D levels also are at increased risk for hypertension, elevated blood sugars, and metabolic syndrome.

Screening for vitamin D deficiency is imperative for the adolescent age group who have been identified to have risk factors because the deficiency can compound other illnesses, prevents appropriate bone mineralization, and decreases the patient’s generalized sense of well-being. Serum 25(OH)D has a long half-life and is a better predictor of serum levels (Am. J. Clin. Nutr. 2008;88:582S-6S).

Supplementation of Vitamin D should be in the form of D₃, which has been shown to be more efficient in raising the serum level (Am. J. Clin. Nutr. 2012;95:1357-64), and dose will vary depending on the severity. Complimenting it with a calcium supplement also will improve bone mineralization and absorption.

Vitamin D deficiency is not a thing of the past. A simple nutritional review with every encounter allows for the educational opportunity for healthy eating and appropriate supplementation. The patient with recurrent upper respiratory infections should be encouraged to maintain a daily intake of at least 600 IU, but in patients with increased risk factors an actual blood test should be done to determine the amount that should be prescribed.

Dr. Pearce is a pediatrician in Frankfort, Ill. She had no relevant financial disclosures. E-mail her at [email protected]. Scan this QR code or go to pediatricnews.com to view similar articles.

In a recent column, I considered the different meanings some words we use every day can have when patients use them. The word I discussed was “biopsy.” There are, of course, many other words our patients use, or at least pronounce, differently than we do.

Many middle-aged men, for instance, have troubles with their prostrate.

Patients of both genders may be quite outgoing in general, but the cells in their skin cancers are squeamish.

And lots of people ask me to take a look at their molds. Or remove them. Or they write as a reason for “Why are you seeing the doctor today?” the answer “Check molds.”

Or sometimes patients tell me that the medicine I prescribed for their eczema not only hadn’t helped, but had exasperated things. (This works both ways. The other day a friend complained that his kids were really exacerbating him. As a parent, I can relate.)

And then there was Jim, who came in last month. “Dr. Skirball sent me over to have you look at this rash,” he said. “He wants you to do an autopsy.”

Well, Dr. Skirball was just going to have to wait, wasn’t he?

But then I saw Emma, who presented me with a linguistic insight I never heard before. Even after many years, patients can surprise you.

Emma is 17. She has acne. One glance showed that after 2 months of treatment, Emma wasn’t getting any better.

“Is the cream irritating you at all?” I asked.

“No,” she said. “I’m not using it, Doctor.”

OK, I thought. That happens often enough. I needed to find out why, though. Maybe I could convince her to try it after all.

“How come you didn’t use it?” I asked.

“I read the instructions that came with it,” Emma said, brightly. “And I followed them!”

“That’s great,” I said. “What do you mean?”

“Well, I read the small print at the end, and I saw that there was a warning: ‘Only for tropical use.’ ”

“What?”

“It said it was just for tropical use. And just around then it got kind of chilly, so I decided not to take a chance.”

I’ve seen plenty of people who read a label warning that says, “Avoid excessive sun exposure,” (whatever that means) and think they should stop the medicine every time the sun comes out. In fact, I always tell patients up front to ignore that warning, to follow routine sun precautions when relevant, and take the medicine.

And I’ve also heard plenty of people pronounce topical treatment, “tropical treatment.” Or refer to the branded version of desoximetasone as “Tropicort.”

But never, ever, had I met someone who not only mispronounced “topical” as “tropical,” but understood it as “of or pertaining to the tropics.” And then didn’t use the product, because they live in the temperate zone.

Besides, it’s late fall in Boston. What was Emma planning to do? Wait till next spring? Move to the Cayman Islands?

While we’re at it, why don’t many patients bother calling to tell us that the reason they’ve decided to stop using something we prescribed? But that’s another story.

“Emma,” I explained. “It’s not ‘tropical use.’ It’s ‘topical use.’ That just means you use it externally. On top of the skin.”

“Oh, I get it,” Emma said.

As I said, patients never cease to amaze. The weather’s gotten even chillier around here, but now that Emma will use the cream, we’ll see how she does. If she goes to Mexico for winter break, she’ll do even better.

Where is global warming when you need it?

Dr. Rockoff practices dermatology in Brookline, Mass., and is a longtime contributor to Dermatology News. He serves on the clinical faculty at Tufts University, Boston, and has taught senior medical students and other trainees for 30 years.

In a recent column, I considered the different meanings some words we use every day can have when patients use them. The word I discussed was “biopsy.” There are, of course, many other words our patients use, or at least pronounce, differently than we do.

Many middle-aged men, for instance, have troubles with their prostrate.

Patients of both genders may be quite outgoing in general, but the cells in their skin cancers are squeamish.

And lots of people ask me to take a look at their molds. Or remove them. Or they write as a reason for “Why are you seeing the doctor today?” the answer “Check molds.”

Or sometimes patients tell me that the medicine I prescribed for their eczema not only hadn’t helped, but had exasperated things. (This works both ways. The other day a friend complained that his kids were really exacerbating him. As a parent, I can relate.)

And then there was Jim, who came in last month. “Dr. Skirball sent me over to have you look at this rash,” he said. “He wants you to do an autopsy.”

Well, Dr. Skirball was just going to have to wait, wasn’t he?

But then I saw Emma, who presented me with a linguistic insight I never heard before. Even after many years, patients can surprise you.

Emma is 17. She has acne. One glance showed that after 2 months of treatment, Emma wasn’t getting any better.

“Is the cream irritating you at all?” I asked.

“No,” she said. “I’m not using it, Doctor.”

OK, I thought. That happens often enough. I needed to find out why, though. Maybe I could convince her to try it after all.

“How come you didn’t use it?” I asked.

“I read the instructions that came with it,” Emma said, brightly. “And I followed them!”

“That’s great,” I said. “What do you mean?”

“Well, I read the small print at the end, and I saw that there was a warning: ‘Only for tropical use.’ ”

“What?”

“It said it was just for tropical use. And just around then it got kind of chilly, so I decided not to take a chance.”

I’ve seen plenty of people who read a label warning that says, “Avoid excessive sun exposure,” (whatever that means) and think they should stop the medicine every time the sun comes out. In fact, I always tell patients up front to ignore that warning, to follow routine sun precautions when relevant, and take the medicine.

And I’ve also heard plenty of people pronounce topical treatment, “tropical treatment.” Or refer to the branded version of desoximetasone as “Tropicort.”

But never, ever, had I met someone who not only mispronounced “topical” as “tropical,” but understood it as “of or pertaining to the tropics.” And then didn’t use the product, because they live in the temperate zone.

Besides, it’s late fall in Boston. What was Emma planning to do? Wait till next spring? Move to the Cayman Islands?

While we’re at it, why don’t many patients bother calling to tell us that the reason they’ve decided to stop using something we prescribed? But that’s another story.

“Emma,” I explained. “It’s not ‘tropical use.’ It’s ‘topical use.’ That just means you use it externally. On top of the skin.”

“Oh, I get it,” Emma said.

As I said, patients never cease to amaze. The weather’s gotten even chillier around here, but now that Emma will use the cream, we’ll see how she does. If she goes to Mexico for winter break, she’ll do even better.

Where is global warming when you need it?

Dr. Rockoff practices dermatology in Brookline, Mass., and is a longtime contributor to Dermatology News. He serves on the clinical faculty at Tufts University, Boston, and has taught senior medical students and other trainees for 30 years.

In a recent column, I considered the different meanings some words we use every day can have when patients use them. The word I discussed was “biopsy.” There are, of course, many other words our patients use, or at least pronounce, differently than we do.

Many middle-aged men, for instance, have troubles with their prostrate.

Patients of both genders may be quite outgoing in general, but the cells in their skin cancers are squeamish.

And lots of people ask me to take a look at their molds. Or remove them. Or they write as a reason for “Why are you seeing the doctor today?” the answer “Check molds.”

Or sometimes patients tell me that the medicine I prescribed for their eczema not only hadn’t helped, but had exasperated things. (This works both ways. The other day a friend complained that his kids were really exacerbating him. As a parent, I can relate.)

And then there was Jim, who came in last month. “Dr. Skirball sent me over to have you look at this rash,” he said. “He wants you to do an autopsy.”

Well, Dr. Skirball was just going to have to wait, wasn’t he?

But then I saw Emma, who presented me with a linguistic insight I never heard before. Even after many years, patients can surprise you.

Emma is 17. She has acne. One glance showed that after 2 months of treatment, Emma wasn’t getting any better.

“Is the cream irritating you at all?” I asked.

“No,” she said. “I’m not using it, Doctor.”

OK, I thought. That happens often enough. I needed to find out why, though. Maybe I could convince her to try it after all.

“How come you didn’t use it?” I asked.

“I read the instructions that came with it,” Emma said, brightly. “And I followed them!”

“That’s great,” I said. “What do you mean?”

“Well, I read the small print at the end, and I saw that there was a warning: ‘Only for tropical use.’ ”

“What?”

“It said it was just for tropical use. And just around then it got kind of chilly, so I decided not to take a chance.”

I’ve seen plenty of people who read a label warning that says, “Avoid excessive sun exposure,” (whatever that means) and think they should stop the medicine every time the sun comes out. In fact, I always tell patients up front to ignore that warning, to follow routine sun precautions when relevant, and take the medicine.

And I’ve also heard plenty of people pronounce topical treatment, “tropical treatment.” Or refer to the branded version of desoximetasone as “Tropicort.”

But never, ever, had I met someone who not only mispronounced “topical” as “tropical,” but understood it as “of or pertaining to the tropics.” And then didn’t use the product, because they live in the temperate zone.

Besides, it’s late fall in Boston. What was Emma planning to do? Wait till next spring? Move to the Cayman Islands?

While we’re at it, why don’t many patients bother calling to tell us that the reason they’ve decided to stop using something we prescribed? But that’s another story.

“Emma,” I explained. “It’s not ‘tropical use.’ It’s ‘topical use.’ That just means you use it externally. On top of the skin.”

“Oh, I get it,” Emma said.

As I said, patients never cease to amaze. The weather’s gotten even chillier around here, but now that Emma will use the cream, we’ll see how she does. If she goes to Mexico for winter break, she’ll do even better.

Where is global warming when you need it?

Dr. Rockoff practices dermatology in Brookline, Mass., and is a longtime contributor to Dermatology News. He serves on the clinical faculty at Tufts University, Boston, and has taught senior medical students and other trainees for 30 years.

Seems that none of my patients sleeps, or at least not very well. Indeed, population-based studies suggest that almost one-third of adults report difficulty initiating or maintaining sleep, waking up too early, and/or nonrestorative or poor quality of sleep.

Light-emitting electronic “e-readers” or “e-books” have exploded as a favorite medium for reading. Many of my patients tell me that when they are unable to sleep, they read. Much of this reading occurs on e-books. But artificial light can produce alerting effects and suppress melatonin. This might be causing or worsening the national insomnia epidemic.

Dr. Anne-Marie Chang and colleagues conducted a randomized, crossover study evaluating the impact of an e-book and a traditional book on sleep (PNAS 2014 Dec. 22 [doi:10.1073/pnas.1418490112]). In the study, 12 healthy young adults were randomized to two conditions: 1) reading an e-book for 4 hours before bedtime; or 2) reading a printed book for 4 hours before bedtime on 5 consecutive evenings. Participants then switched conditions.

The e-book suppressed evening levels of melatonin by 55%, whereas the printed book showed no suppression, and the e-book shifted the melatonin onset to more than 1.5 hours later. Compared with the printed book, the e-book also significantly increased sleep latency (10 minutes longer), decreased REM sleep by11 minutes, decreased evening sleepiness, and increased morning sleepiness.

But not all e-book readers are created equal. Screens of devices used in the current study emit blue light (wavelength 452 nm), the type of light most implicated in melatonin suppression. Newer “e-ink” readers do not emit this light and are “front lit,” with light cast inward rather than outward.

People struggling with insomnia should be encouraged to explore the e-ink options. The table included in the study can provide some guidance as to the type of e-book that may be most beneficial to our sleepy patients.

Dr. Ebbert is professor of medicine, a general internist at the Mayo Clinic in Rochester, Minn., and a diplomate of the American Board of Addiction Medicine. The opinions expressed are those of the author. The opinions expressed in this article should not be used to diagnose or treat any medical condition nor should they be used as a substitute for medical advice from a qualified, board-certified practicing clinician.

Seems that none of my patients sleeps, or at least not very well. Indeed, population-based studies suggest that almost one-third of adults report difficulty initiating or maintaining sleep, waking up too early, and/or nonrestorative or poor quality of sleep.

Light-emitting electronic “e-readers” or “e-books” have exploded as a favorite medium for reading. Many of my patients tell me that when they are unable to sleep, they read. Much of this reading occurs on e-books. But artificial light can produce alerting effects and suppress melatonin. This might be causing or worsening the national insomnia epidemic.

Dr. Anne-Marie Chang and colleagues conducted a randomized, crossover study evaluating the impact of an e-book and a traditional book on sleep (PNAS 2014 Dec. 22 [doi:10.1073/pnas.1418490112]). In the study, 12 healthy young adults were randomized to two conditions: 1) reading an e-book for 4 hours before bedtime; or 2) reading a printed book for 4 hours before bedtime on 5 consecutive evenings. Participants then switched conditions.

The e-book suppressed evening levels of melatonin by 55%, whereas the printed book showed no suppression, and the e-book shifted the melatonin onset to more than 1.5 hours later. Compared with the printed book, the e-book also significantly increased sleep latency (10 minutes longer), decreased REM sleep by11 minutes, decreased evening sleepiness, and increased morning sleepiness.

But not all e-book readers are created equal. Screens of devices used in the current study emit blue light (wavelength 452 nm), the type of light most implicated in melatonin suppression. Newer “e-ink” readers do not emit this light and are “front lit,” with light cast inward rather than outward.

People struggling with insomnia should be encouraged to explore the e-ink options. The table included in the study can provide some guidance as to the type of e-book that may be most beneficial to our sleepy patients.

Dr. Ebbert is professor of medicine, a general internist at the Mayo Clinic in Rochester, Minn., and a diplomate of the American Board of Addiction Medicine. The opinions expressed are those of the author. The opinions expressed in this article should not be used to diagnose or treat any medical condition nor should they be used as a substitute for medical advice from a qualified, board-certified practicing clinician.

Seems that none of my patients sleeps, or at least not very well. Indeed, population-based studies suggest that almost one-third of adults report difficulty initiating or maintaining sleep, waking up too early, and/or nonrestorative or poor quality of sleep.

Light-emitting electronic “e-readers” or “e-books” have exploded as a favorite medium for reading. Many of my patients tell me that when they are unable to sleep, they read. Much of this reading occurs on e-books. But artificial light can produce alerting effects and suppress melatonin. This might be causing or worsening the national insomnia epidemic.

Dr. Anne-Marie Chang and colleagues conducted a randomized, crossover study evaluating the impact of an e-book and a traditional book on sleep (PNAS 2014 Dec. 22 [doi:10.1073/pnas.1418490112]). In the study, 12 healthy young adults were randomized to two conditions: 1) reading an e-book for 4 hours before bedtime; or 2) reading a printed book for 4 hours before bedtime on 5 consecutive evenings. Participants then switched conditions.

The e-book suppressed evening levels of melatonin by 55%, whereas the printed book showed no suppression, and the e-book shifted the melatonin onset to more than 1.5 hours later. Compared with the printed book, the e-book also significantly increased sleep latency (10 minutes longer), decreased REM sleep by11 minutes, decreased evening sleepiness, and increased morning sleepiness.

But not all e-book readers are created equal. Screens of devices used in the current study emit blue light (wavelength 452 nm), the type of light most implicated in melatonin suppression. Newer “e-ink” readers do not emit this light and are “front lit,” with light cast inward rather than outward.

People struggling with insomnia should be encouraged to explore the e-ink options. The table included in the study can provide some guidance as to the type of e-book that may be most beneficial to our sleepy patients.

Dr. Ebbert is professor of medicine, a general internist at the Mayo Clinic in Rochester, Minn., and a diplomate of the American Board of Addiction Medicine. The opinions expressed are those of the author. The opinions expressed in this article should not be used to diagnose or treat any medical condition nor should they be used as a substitute for medical advice from a qualified, board-certified practicing clinician.

Question: A patient alleges that an ophthalmologist was negligent in performing blepharoplasty. The surgical site became infected and left the patient with a disfigured eye. An infectious disease specialist was to testify as plaintiff’s expert, but the defense, relying on a state statute, objected that the expert-to-be had no specialized training in ophthalmology.

Correct statements about expert medical testimony include the following, except:

A. The federal Rules of Evidence require that an expert possess the relevant knowledge, skill, education, training, or experience.

B. Only a few states have enacted statutes specifying that an expert must be in the same or similar specialty as the defendant.

C. Advocates contend that such statutes reduce frivolous lawsuits by limiting expert shopping and the use of “hired guns.”

D. It is the sitting judge, not the jury, who interprets the statute and decides whether a witness qualifies as an expert.

E. In some cases, a nondoctor such as a nurse or pharmacist may be allowed to offer expert testimony against a doctor.

Answer: B. Lay testimony is usually insufficient to define the standard of care in a claim of medical malpractice, and “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw.1995]). Court rules of evidence dictate that the expert must possess the knowledge, skill, experience, training, or education for establishing that standard.

In coming to an opinion, the expert may rely on external evidence in the form of a book, treatise, or article; and although these sources represent hearsay evidence, they are admissible to enable the expert witness to form his/her opinion.

The facts of the multiple-choice question above are taken from a recent case (Edwards v. Sunrise Ophthalmology ASC, LLC, 134 So. 3d 1056 [Fla. 4th DCA 2013]), whose appeal is yet to be heard by the Florida Supreme Court. The plaintiff alleged that the surgical site was infected with nocardia during a lower-lid blepharoplasty, which caused her to undergo additional surgery with resulting disfigurement of the eye.

A lower court disqualified the plaintiff’s expert, an infectious disease specialist, based on a Florida statute stipulating that expert medical opinion can be offered only by one in the “same or similar specialty” (Section 766.102, Florida Statutes (2009)). In the words of the court, “Simply put, the infectious disease doctor is not an eye surgeon, nor is the ophthalmologist an infectious disease doctor.”

More than half of all the states have a medical-expert law, many with language comparable to the Florida statute. The idea behind such a statute, frequently enacted as part of a state’s tort reform, is to limit expert shopping and the use of hired guns and “junk science.”

Unsurprisingly, litigation abounds over the statutory language.

For example, a Maryland court ruled that a vascular surgeon was qualified to set the standard of care when an orthopedic surgeon’s alleged negligence caused a patient to lose a leg following knee surgery. The court found the two specialties to be “related,” because the orthopedic complication was vascular in origin.

In some jurisdictions without strict statutory requirements, doctors are more likely to be allowed to testify outside their specialty.

Instances of professionals of unlike specialties qualifying as experts include a nephrologist testifying against a urologist, an infectious disease specialist offering an expert opinion in a stroke case, a pharmacist testifying on the issue of a medication side effect, and a nurse on bedsores. Georgia requires only that an expert show significant familiarity with the area of practice in which the expert opinion is to be given. Still, in a sleep apnea case (Nathans v. Diamond, 654 S.E.2d 121 [Ga. 2007]), the court held that a pulmonologist was not qualified to testify on the standard of surgical care provided by an otolaryngologist.

Besides arguing over the statutory language, litigants have also raised questions of constitutionality. For example, Arizona’s statute ARS §12-2604 (A) requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state court of appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law (Seisinger v. Siebel, 203 P.3d 483 [Ariz. 2009]).

More recently, the same court upheld the constitutionality of the requirement that an expert share “the same specialty” as the treating physician, and disqualified an adult hematologist from serving as an expert because the defendant was a pediatric hematologist, not an adult hematologist (Baker v. University Physicians Healthcare, 296 P.3d 42 [Ariz. 2013]).

Another issue deals with the locality rule. In an Illinois case, the court accepted an out-of-state plaintiff expert based on his qualifications, competency, and familiarity with standards in the defendant’s community. The case dealt with the development of a rectovaginal fistula that complicated an episiotomy during delivery (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]).

The defense attempted to exclude the expert, alleging the lack of familiarity with the standards in the community (Rantoul, Ill.). However, the expert stated that he was familiar with the minimum standards of medical practice in relation to the diagnosis and treatment of rectovaginal fistulae, and those minimum standards were uniform throughout the country.

It is not necessary that the expert witness has the highest possible qualifications to testify about a particular matter. Still, in Domingo v. T.K. (289 F.3d 600 [9th Cir. 2002]), a federal court excluded the testimony of the plaintiff’s expert witness, because it lacked reliability. The plaintiff developed brain damage from fat embolism following hip surgery, and alleged that prolonged malleting of a hip prosthesis was the cause of the fat embolism syndrome (FES).

The court found that “there was no evidence of widespread acceptance of Dr. Harrington’s theory linking extended malleting to FES; indeed, no theory linking extensive malleting to FES had ever been published.” It also noted the lack of any objective source, peer review, clinical tests, establishment of an error rate or other evidence to show that Dr. Harrington followed a valid, scientific method in developing his theory.

Being disqualified as an expert is one thing, but a recent case goes further. In addition to dismissing an expert’s testimony, a state judge barred the expert from ever testifying in his courtroom after it was determined that the testimony was untruthful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected]

Question: A patient alleges that an ophthalmologist was negligent in performing blepharoplasty. The surgical site became infected and left the patient with a disfigured eye. An infectious disease specialist was to testify as plaintiff’s expert, but the defense, relying on a state statute, objected that the expert-to-be had no specialized training in ophthalmology.

Correct statements about expert medical testimony include the following, except:

A. The federal Rules of Evidence require that an expert possess the relevant knowledge, skill, education, training, or experience.

B. Only a few states have enacted statutes specifying that an expert must be in the same or similar specialty as the defendant.

C. Advocates contend that such statutes reduce frivolous lawsuits by limiting expert shopping and the use of “hired guns.”

D. It is the sitting judge, not the jury, who interprets the statute and decides whether a witness qualifies as an expert.

E. In some cases, a nondoctor such as a nurse or pharmacist may be allowed to offer expert testimony against a doctor.

Answer: B. Lay testimony is usually insufficient to define the standard of care in a claim of medical malpractice, and “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw.1995]). Court rules of evidence dictate that the expert must possess the knowledge, skill, experience, training, or education for establishing that standard.

In coming to an opinion, the expert may rely on external evidence in the form of a book, treatise, or article; and although these sources represent hearsay evidence, they are admissible to enable the expert witness to form his/her opinion.

The facts of the multiple-choice question above are taken from a recent case (Edwards v. Sunrise Ophthalmology ASC, LLC, 134 So. 3d 1056 [Fla. 4th DCA 2013]), whose appeal is yet to be heard by the Florida Supreme Court. The plaintiff alleged that the surgical site was infected with nocardia during a lower-lid blepharoplasty, which caused her to undergo additional surgery with resulting disfigurement of the eye.

A lower court disqualified the plaintiff’s expert, an infectious disease specialist, based on a Florida statute stipulating that expert medical opinion can be offered only by one in the “same or similar specialty” (Section 766.102, Florida Statutes (2009)). In the words of the court, “Simply put, the infectious disease doctor is not an eye surgeon, nor is the ophthalmologist an infectious disease doctor.”

More than half of all the states have a medical-expert law, many with language comparable to the Florida statute. The idea behind such a statute, frequently enacted as part of a state’s tort reform, is to limit expert shopping and the use of hired guns and “junk science.”

Unsurprisingly, litigation abounds over the statutory language.

For example, a Maryland court ruled that a vascular surgeon was qualified to set the standard of care when an orthopedic surgeon’s alleged negligence caused a patient to lose a leg following knee surgery. The court found the two specialties to be “related,” because the orthopedic complication was vascular in origin.

In some jurisdictions without strict statutory requirements, doctors are more likely to be allowed to testify outside their specialty.

Instances of professionals of unlike specialties qualifying as experts include a nephrologist testifying against a urologist, an infectious disease specialist offering an expert opinion in a stroke case, a pharmacist testifying on the issue of a medication side effect, and a nurse on bedsores. Georgia requires only that an expert show significant familiarity with the area of practice in which the expert opinion is to be given. Still, in a sleep apnea case (Nathans v. Diamond, 654 S.E.2d 121 [Ga. 2007]), the court held that a pulmonologist was not qualified to testify on the standard of surgical care provided by an otolaryngologist.

Besides arguing over the statutory language, litigants have also raised questions of constitutionality. For example, Arizona’s statute ARS §12-2604 (A) requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state court of appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law (Seisinger v. Siebel, 203 P.3d 483 [Ariz. 2009]).

More recently, the same court upheld the constitutionality of the requirement that an expert share “the same specialty” as the treating physician, and disqualified an adult hematologist from serving as an expert because the defendant was a pediatric hematologist, not an adult hematologist (Baker v. University Physicians Healthcare, 296 P.3d 42 [Ariz. 2013]).

Another issue deals with the locality rule. In an Illinois case, the court accepted an out-of-state plaintiff expert based on his qualifications, competency, and familiarity with standards in the defendant’s community. The case dealt with the development of a rectovaginal fistula that complicated an episiotomy during delivery (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]).

The defense attempted to exclude the expert, alleging the lack of familiarity with the standards in the community (Rantoul, Ill.). However, the expert stated that he was familiar with the minimum standards of medical practice in relation to the diagnosis and treatment of rectovaginal fistulae, and those minimum standards were uniform throughout the country.

It is not necessary that the expert witness has the highest possible qualifications to testify about a particular matter. Still, in Domingo v. T.K. (289 F.3d 600 [9th Cir. 2002]), a federal court excluded the testimony of the plaintiff’s expert witness, because it lacked reliability. The plaintiff developed brain damage from fat embolism following hip surgery, and alleged that prolonged malleting of a hip prosthesis was the cause of the fat embolism syndrome (FES).

The court found that “there was no evidence of widespread acceptance of Dr. Harrington’s theory linking extended malleting to FES; indeed, no theory linking extensive malleting to FES had ever been published.” It also noted the lack of any objective source, peer review, clinical tests, establishment of an error rate or other evidence to show that Dr. Harrington followed a valid, scientific method in developing his theory.

Being disqualified as an expert is one thing, but a recent case goes further. In addition to dismissing an expert’s testimony, a state judge barred the expert from ever testifying in his courtroom after it was determined that the testimony was untruthful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected]

Question: A patient alleges that an ophthalmologist was negligent in performing blepharoplasty. The surgical site became infected and left the patient with a disfigured eye. An infectious disease specialist was to testify as plaintiff’s expert, but the defense, relying on a state statute, objected that the expert-to-be had no specialized training in ophthalmology.

Correct statements about expert medical testimony include the following, except:

A. The federal Rules of Evidence require that an expert possess the relevant knowledge, skill, education, training, or experience.

B. Only a few states have enacted statutes specifying that an expert must be in the same or similar specialty as the defendant.

C. Advocates contend that such statutes reduce frivolous lawsuits by limiting expert shopping and the use of “hired guns.”

D. It is the sitting judge, not the jury, who interprets the statute and decides whether a witness qualifies as an expert.

E. In some cases, a nondoctor such as a nurse or pharmacist may be allowed to offer expert testimony against a doctor.

Answer: B. Lay testimony is usually insufficient to define the standard of care in a claim of medical malpractice, and “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw.1995]). Court rules of evidence dictate that the expert must possess the knowledge, skill, experience, training, or education for establishing that standard.

In coming to an opinion, the expert may rely on external evidence in the form of a book, treatise, or article; and although these sources represent hearsay evidence, they are admissible to enable the expert witness to form his/her opinion.

The facts of the multiple-choice question above are taken from a recent case (Edwards v. Sunrise Ophthalmology ASC, LLC, 134 So. 3d 1056 [Fla. 4th DCA 2013]), whose appeal is yet to be heard by the Florida Supreme Court. The plaintiff alleged that the surgical site was infected with nocardia during a lower-lid blepharoplasty, which caused her to undergo additional surgery with resulting disfigurement of the eye.

A lower court disqualified the plaintiff’s expert, an infectious disease specialist, based on a Florida statute stipulating that expert medical opinion can be offered only by one in the “same or similar specialty” (Section 766.102, Florida Statutes (2009)). In the words of the court, “Simply put, the infectious disease doctor is not an eye surgeon, nor is the ophthalmologist an infectious disease doctor.”

More than half of all the states have a medical-expert law, many with language comparable to the Florida statute. The idea behind such a statute, frequently enacted as part of a state’s tort reform, is to limit expert shopping and the use of hired guns and “junk science.”

Unsurprisingly, litigation abounds over the statutory language.

For example, a Maryland court ruled that a vascular surgeon was qualified to set the standard of care when an orthopedic surgeon’s alleged negligence caused a patient to lose a leg following knee surgery. The court found the two specialties to be “related,” because the orthopedic complication was vascular in origin.

In some jurisdictions without strict statutory requirements, doctors are more likely to be allowed to testify outside their specialty.

Instances of professionals of unlike specialties qualifying as experts include a nephrologist testifying against a urologist, an infectious disease specialist offering an expert opinion in a stroke case, a pharmacist testifying on the issue of a medication side effect, and a nurse on bedsores. Georgia requires only that an expert show significant familiarity with the area of practice in which the expert opinion is to be given. Still, in a sleep apnea case (Nathans v. Diamond, 654 S.E.2d 121 [Ga. 2007]), the court held that a pulmonologist was not qualified to testify on the standard of surgical care provided by an otolaryngologist.

Besides arguing over the statutory language, litigants have also raised questions of constitutionality. For example, Arizona’s statute ARS §12-2604 (A) requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state court of appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law (Seisinger v. Siebel, 203 P.3d 483 [Ariz. 2009]).

More recently, the same court upheld the constitutionality of the requirement that an expert share “the same specialty” as the treating physician, and disqualified an adult hematologist from serving as an expert because the defendant was a pediatric hematologist, not an adult hematologist (Baker v. University Physicians Healthcare, 296 P.3d 42 [Ariz. 2013]).

Another issue deals with the locality rule. In an Illinois case, the court accepted an out-of-state plaintiff expert based on his qualifications, competency, and familiarity with standards in the defendant’s community. The case dealt with the development of a rectovaginal fistula that complicated an episiotomy during delivery (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]).

The defense attempted to exclude the expert, alleging the lack of familiarity with the standards in the community (Rantoul, Ill.). However, the expert stated that he was familiar with the minimum standards of medical practice in relation to the diagnosis and treatment of rectovaginal fistulae, and those minimum standards were uniform throughout the country.

It is not necessary that the expert witness has the highest possible qualifications to testify about a particular matter. Still, in Domingo v. T.K. (289 F.3d 600 [9th Cir. 2002]), a federal court excluded the testimony of the plaintiff’s expert witness, because it lacked reliability. The plaintiff developed brain damage from fat embolism following hip surgery, and alleged that prolonged malleting of a hip prosthesis was the cause of the fat embolism syndrome (FES).

The court found that “there was no evidence of widespread acceptance of Dr. Harrington’s theory linking extended malleting to FES; indeed, no theory linking extensive malleting to FES had ever been published.” It also noted the lack of any objective source, peer review, clinical tests, establishment of an error rate or other evidence to show that Dr. Harrington followed a valid, scientific method in developing his theory.

Being disqualified as an expert is one thing, but a recent case goes further. In addition to dismissing an expert’s testimony, a state judge barred the expert from ever testifying in his courtroom after it was determined that the testimony was untruthful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected]