Hindsight bias in medicolegal expert reports

Abstract

Malpractice litigation is now a substantial cost in the provision of healthcare. Despite new attitudes of Australian courts towards medical evidence, expert reports remain the cornerstone of most medical negligence cases. There is evidence that hindsight bias, which may cause the expert to simplify, trivialise and criticise retrospectively the decisions of the treating doctor, is inevitable when the expert knows there has been an adverse outcome. If possible, outcome information should be withheld from experts providing reports. If outcome information is not withheld, courts should be made aware of the probability of hindsight bias.

What do family physicians consider an error? A comparison of definitions and physician perception

“…Woods and Cook remark on this confusion by describing three ways in which "error" is used: error as the cause of failure (or poor outcome), as the failure itself or as departure from a standard process[46]. Hindsight and outcome bias describe how knowledge of the outcome affects the decision making about the quality of processes[50,51]. For example, if we can't find a test result when wanted, but it is normal and doesn't change our management, we define the lost result differently than when a result is abnormal, and now treatment has been significantly delayed[21].…”

Patient assessments of a hypothetical medical error: effects of health outcome, disclosure, and staff responsiveness

“…34 But even if scenarios do not reflect exactly the real world, they help clarify the judgement principles employed in the real world. 31 Furthermore, the psychological distance vignettes afford between the situation being described and the rater may be an advantage when threatening or emotionally stressful situations are explored. 10 34 In such cases, direct questioning of protagonists may be either difficult or unethical.…”

“…This observation can be considered as an example of hindsight bias due to the human tendency to overestimate causality: 1 29 if the outcome is bad, the error must be bad too. Previous research indicates that doctors 30 and court experts 31 are also prone to this bias.…”

Retrospective bias in expert evidence: Effects on patient and doctor safety

“…Exploring this further, hindsight bias allows us to assemble disjointed events into a logical and understandable story that explains what happened, 5 whereas outcome bias reflects our inability to keep this awareness of the outcome to ourselves. Some think that it is inevitable that the expert witness will trivialize, simplify and criticize the actions of a clinician once the expert knows that there has been an adverse outcome 6 …”

“…First, all medical practitioners have been subjected to the ‘retrospectoscope’. When viewed through the lens of an adverse outcome, the circumstances leading to the decisions made might become distorted and the main players might be unfairly scrutinized 10 . The ensuing critical process, where many irrelevant factors might be entrained, can be belittling for any doctor.…”