to the editor: Evidence-based medicine (EBM) was considered a “dirty word” in a malpractice trial reported in 2004 in JAMA.¹ Dr. Daniel Merenstein, a family physician, related his experience where he appropriately used EBM and shared decision making regarding prostate cancer screening. Unfortunately, this was followed by a court trial after the patient was later diagnosed with prostate cancer. The plaintiff’s counsel argued that EBM and shared decision making were not “standard of care” and won the case. Four physicians testified to this effect as expert witnesses for the plaintiff.

This disheartening report¹ has stirred much discussion in the medical community. Numerous professional organizations and scientific groups recommend care consistent with Dr. Merenstein’s approach, acknowledging the uncertainty in our current understanding of prostate cancer screening, and promoting patient autonomy with informed decision making.

To put this malpractice trial in perspective, the outcome does not redress substandard medical care or malpractice, but rather demonstrates a failure of our legal system.

To teachers of EBM: Do not consider this single case report¹ evidence that practicing EBM leads to malpractice claims. What is not reported is how many malpractice cases are prevented by approaches using EBM and shared decision making.

To the medical community: EBM and shared decision making is standard of care if defined as being supported by most professional organizations, medical license boards, educators, and other groups of patients and physicians, or by using the accepted definition of EBM as “the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients.”² However, EBM and shared decision making is not standard of care if it is defined as “how most physicians practice.” This is a tragedy and one that requires action. All physicians should have training in the skills of EBM and shared decision making, and our clinical systems must be modified to support these practices.

To the American public: Our tort system greatly needs reform. The courts are meant to provide justice, not compensation for life’s harsh realities. Justice is best served by determining the truth. EBM teaches us to systematically and critically appraise information, separating fact from bias. Legal combatants start with the desired testimony, and then find willing “experts.” Bias (from the legal consultant’s desired outcome and the expert witness’s financial gain) determines the information presented. To provide justice based on truth, we need a different selection process for expert witnesses. Why shouldn’t our legal system be based on the conscientious, explicit, and judicious use of current best evidence in making decisions about individual cases?