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The role of practice guidelines in malpractice litigation has been discussed in some theoretical detail. Little information is available, however, on how courts use guidelines or on the effort of state legislatures to explicitly link guideline compliance with malpractice defenses. We review all relevant case law and legislative enactments to shed light on the influence of medical malpractice on guidelines. We also use data from a nationwide survey of malpractice attorneys to supplement our legal analysis. Although guidelines are being used for both inculpatory and exculpatory purposes in common-law litigation (a two-way street), legislatures are interested in applying them only for exculpatory purposes (a one-way street).

Too many patients are injured in the course of care. Clinicians may mistakenly cause new harm to a patient or fail to take established steps to improve the presenting condition. Medical institutions within which they work may lack mechanisms to reduce errors or prevent them from harming patients. Many, perhaps even most, injuries are preventable, probably numbering in the hundreds of thousands a year for hospital care alone. Long ignored by medical practitioners and health-care payers and little appreciated by the public, the problem of medical injury is finally receiving high-level policy attention. Much credit goes to the Institute of Medicine (IOM) for its landmark report of November 1999, which marshaled the evidence about medical injuries and highlighted new approaches to systematic improvement of safety within systems of care.

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