Medical Practice Guidelines in Malpractice Litigation: An Early Retrospective

Abstract

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).

Use of the Physician Insurers Association of America Database as a Surveillance Tool for Diabetes-Related Malpractice Claims in the U.S.

“…The use of practice guidelines to reduce liability risk is an area that has been receiving much attention (14)(15)(16)19). Practice guidelines, however, can be used by both the defendant and plaintiff to their advantage (14,23).…”

“…Recent initiatives have been launched to try to raise the level of provider adherence to recommended standards of care (12,13). In addition, the utility of clinical practice guidelines in malpractice litigation is under extensive review in the medicolegal community (14)(15)(16). One route to increase awareness of practice guidelines on diabetes would be through educational programs sponsored by the medical liability insurance industry.…”

Medical Malpractice

“…Custom is determined primarily through the testimony of experts in the same field as the defendant, although some encapsulations of expert opinion, such as practice guidelines, may also be used. 5,6 In at least 20 states, there has been a discernible shift in recent years away from custom and toward a more independent determination by the court of whether the defendant deviated from "reasonable" conduct. 7 There are three social goals of malpractice litigation: to deter unsafe practices, to compensate persons injured through negligence, and to exact corrective justice.…”

Clinical Policies: Their History, Future, Medical Legal Implications, and Growing Importance to Physicians

“…In a three-component report to the Physician Payment Review Commission, Hyams and colleagues performed a three-component assessment of clinical policy utilization in malpractice litigation (57,58). In component one, a computerized legal search was performed for any US court's use of practice guidelines and standards in medical malpractice litigation over 13 years.…”