Like other tort reform buzzwords such as "defensive medicine," it passes the "bumper sticker worthy" test, meaning it is overly simplistic and can be repeated over and over for maximum effect with an unsuspecting public and friendly lawmakers. But just how does "evidence based medicine immunity" square with the poor guy who had cancer surgery to remove his prostate when it turned out he didn't have cancer after all because his biopsy results got switched with another patient's?
This case was so secretive that the patient's name, the clinic, the lab, the doctors, and even the venue (the location where the malpractice and lawsuit took place) were confidential. But here's what happened to poor "George" as we'll call him.
After having a biopsy at a clinic to confirm or rule out prostate cancer, George's sample was sent to a pathology lab. Here's what happened after that:
The lab then determined the patient had prostate cancer and the patient underwent a robotic prostatectomy. But a sample taken from him after surgery showed he had no cancer at all. It was discovered that the original tissue sample had been switched with that of another patient who thought he was cancer-free. Exactly how the switch took place, however, was never cleared up.
After he sued both the clinic and the lab for wrongfully removing his prostate, things got more interesting in the lawsuit:
...both the clinic and the lab denied responsibility for the error. A nurse at the clinic insisted she labeled the sample correctly and followed protocol to make sure the requisition form matched the specimen. The pathologist at the lab reported matching the name on the requisition form with the name on the specimen, and lab technicians and pathologists followed all protocols during analysis.
Therein lies the problem with an "evidence based medicine" defense. How can everybody in the medical chain be following all protocols and this poor guy has unnecessary surgery for a non-cancerous prostate gland that's been removed as a result?
Evidence based medicine isn't so black and white after all when real world medical errors like this happen. At the end of the day, "best practices" and "protocols" are nothing more than aspirational pieces of paper. They're not worth squat if the team can't execute the playbook, and it's even worse when medical providers swear under oath that they followed the playbook, even in the face of an obvious medical mistake proving otherwise.