Watch out for Snakes… In the Grass and the Courtroom
An article I read in The Expert Witness Newsletter (it’s a thing), reported that a 13-year-old girl was bitten on her foot by a rattlesnake one night just after 8 pm. Her father killed the snake and took a picture, which is always smart, and brought the snake to the ER, which is usually not that smart. The picture shows that the snake still had its head, and, as any herpetologist will tell you, they can bite reflexively even after they are “dead.”
For what it’s worth, I did the same thing with a copperhead as a child, sending my elderly neighbor into a personal best sprint when I held it out. I, in fact, have the rare honor of having been bitten by three out of four of America’s poisonous snakes, copperheads, water moccasins, and rattlesnakes. Growing up in rural Arkansas has more disadvantages than you might think. I’m still watching for a coral snake, so I’ll have a full set, but since that’s a neurotoxin instead of a blood toxin, I’m in no hurry.
This young girl was seen at the ER within an hour, and her foot showed a little swelling and quite wide fang marks, meaning it was a big snake. The hospital had a snake bite protocol, and they completed a Snakebite Severity Score (SSS), which I always hear as a hissing sound, and it shows the following. Pulmonary (0), Cardiovascular (0), Pain/Swelling/Ecchymosis<7.5-50cm (2), GI(0), Hematological (0) due to a completely normal set of labs at 9:24 pm, and CNS was 0. According to the CroFab decision tree, 3 or less means no antivenom, so with a score of 2, none was given. She developed some paresthesia of the toes, which took her to a 3. Still, no antivenom was indicated. The ER physician ordered a repeat CBC, BMP, and coagulation panel, which showed a thrombocytopenia of 88 thou/cu mm (150-450) and fibrinogen 179mg/dL (200-393) at 11:39 pm.
This bumped her up above 3, and antivenom was ordered at 11:50 pm, and infused at 29 minutes after midnight. The patient was transferred to a pediatric medical center, where the swelling and redness worsened initially and then improved. Now, the fun has started. The family had wanted the ER doctor to give the CroFab immediately in the first place, despite the SSS score, and blamed the girl’s lingering symptoms on the wait. The hospital wrote off the bill, which, with the CroFab having cost almost $70,000, was not inconsiderable, but this was not enough. An out-of-state ER “expert” was asked to write an opinion, and he said that after reviewing the medical and billing records, he had determined that the patient’s lingering symptoms were the result of the delay in giving the antivenom saying, among much else, “the only cure for envenomation is antivenom.”
As an ER physician and frequent target of snake bites, I can tell you this is not true. The other cure for envenomation is time; it worked for me. What used to be called “Tincture of Time” is often ignored today as medical science advances, but weighing the risks and benefits of therapy sometimes makes doing nothing the best option at that point. Watchful waiting, as we used to say. Medications have consequences, and for CroFab, these include, among many others, irregular heartbeat, severe swelling, difficulty breathing, chest pain, bone pain, back pain, weight loss, and black tarry stools. The expert went on to opine, “Immediate administration of antivenom was necessary for once she exhibited signs of envenomation. To not immediately administer antivenom is negligent and falls below the standard of care for an emergency medicine physician.”
The ER doctor and hospital argued that they had followed established protocols, and this swayed the first court to throw out the lawsuit. The appellate court, however, reversed, saying that the guidelines followed did not negate the possibility that adherence to the guidelines posed an extreme risk of harm. This decision was appealed to the state’s Supreme Court. The American College of Emergency Physicians filed an amicus brief in support of the ER doctor’s decision and reversed the appellate court, dismissing the case.
This brings us back to the “expert” witness claiming that the standard of care was to give the Crofab immediately. Why would they make this claim when ER textbooks and CME say otherwise? The answer is simple. Because they are paid to do so. These experts are coached by civil and criminal attorneys to say whatever is necessary to convince a jury. But can’t we just pull up the “true” standard of care? The answer is that we cannot because US courts have become convinced that the standard of care resides only in the experts’ opinions.
In fact, here is what one expert said under oath as he helped send an 81-year-old physician, Dr. William Bauer, to years in prison. “…the standard of care is a compilation of peer-reviewed articles, position papers, white papers, guidelines published by the government, by professional agencies, and in compendium as those various observations, recommendations and scientific knowledge are brought together, that defines the standard of care in terms of how we practice. So it is not something one can go to a book and Google standard of care and find out what it was for 2017, let’s say, or whatever date we might choose. It would have to be put forth and compiled by somebody like me.”
And there you have it. According to the paid court experts, the standard of care is not to be found in the definitive textbooks like Tintinalli’s Emergency Medicine for the ER doctor, or the Principles and Practice of Pain Medicine by Bajwa, Wooten, and Warfield, which compile and correlate the collected wisdom and experience of hundreds of physicians who are experts in the treatment of pain. No, it can only be determined after the fact, by the paid experts. But where can we go to sit at the feet of these oracles of medical brilliance to know the standards and practice them? To avoid prosecution and ensure the best outcome for our patients? Nowhere. You will only know the standard of care when someone smacks you with it in court.
This would mean that there is no true standard of care. Everything is relative, and whatever you can convince a jury of is the “truth” without regard to evidence-based science. How did we get here? Just like the now discredited bite mark and bullet spectroscopic analysis experts, It started when US courts first ruled expert medical testimony admissible in the early 1800s. At that time, the experts were drawn from medical practitioners whose standing was renowned among their peers. Now, there is an entire industry devoted to expert testimony, and while practicing doctors are held to almost impossible standards, expert witnesses, many of whom no longer practice much clinical medicine, are not held to any true standards at all.
They can make the most outrageous claims to a medically naïve jury as if these claims were fact when they are, in truth, contrary to every textbook and evidence-based medical opinion. Let me give you an example. To earn his 125,000+ pieces of silver against Dr. Bauer, the expert for the prosecution, told the jury that there was a “lifetime cumulative dose of steroids” that Dr. Bauer had exceeded. When challenged, he could only quote one source in Korea for this “fact.” He attacked the use of trigger point steroid injections, saying there was a “general feeling “ that they should not be used. Implying that their use was essentially fraud.
But the witness didn’t stop there; he went on to say that “Steroids are like opioids for the most part” because “…opioids and steroids will make you feel good…” and that opiate medication should not be used in women of “child-bearing age…” Implying that they cause birth problems and “addictiveness” in the child. This is a powerful appeal to emotion, essentially saying that a callous physician is harming children. Claims like these should be held up to a very high level of scrutiny or, more appropriately, banned from the courtroom completely unless they are proven to be a true consensus opinion. And not just that of a single or even a few “experts.”
But can’t the defense just hire its own experts? Not in Dr. Bauer’s case. Several of the most prominent physician experts on pain and addiction who were willing to testify for the defense had their offices raided, and assets seized prior to the recent purge of physicians treating those conditions. Some were prosecuted while others were just left in limbo, terrified every day that the sword would fall, absolutely petrified to testify for any defendant, and risk angering the gods of federal law enforcement.
Others were brave enough to show up for Dr. Bauer. About a dozen, in fact. Physicians, pharmacists, and scientists. All were disqualified by the court. Apparently, they weren’t “expert” enough. Can’t we just hire this expert for the defense, you might ask? No. Like almost all of these professional medical experts, they will only testify for the prosecution. This expert, by his own sworn admission, has NEVER testified for the defense. That’s not where the real money is, apparently. He has made millions of dollars convincing juries to send his colleagues to prison for daring to practice medicine in a manner that the DEA doesn’t think is right. I’m still searching, but to date, I can find no example of this particular “expert” disagreeing with the prosecutors in any meaningful way. Not even once. But I’ll keep looking.
