Hindsight bias and outcome bias in the social construction of medical negligence: a review.

Medical negligence has been the subject of much public debate in recent decades. Although the steep increase in the frequency and size of claims against doctors at the end of the last century appears to have plateaued, in Australia at least, medical indemnity costs and consequences are still a matter of concern for doctors, medical defence organisations and governments in most developed countries. Imprecision in the legal definition of negligence opens the possibility that judgments of this issue at several levels may be subject to hindsight and outcome bias. Hindsight bias relates to the probability of an adverse event perceived by a retrospective observer ("I would have known it was going to happen"), while outcome bias is a largely subconscious cognitive distortion produced by the observer's knowledge of the adverse outcome. This review examines the relevant legal, medical, psychological and sociological literature on the operation of these pervasive and universal biases in the retrospective evaluation of adverse events. A finding of medical negligence is essentially an after-the-event social construction and is invariably affected by hindsight bias and knowledge of the adverse outcome. Such biases obviously pose a threat to the fairness of judgments. A number of debiasing strategies have been suggested but are relatively ineffective because of the universality and strength of these biases and the inherent difficulty of concealing from expert witnesses knowledge of the outcome. Education about the effect of the biases is therefore important for lawyers, medical expert witnesses and the judiciary.