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The implications of practice guidelines for physician medical malpractice liabilty

Medical practice guidelines are created by physicians, often for a medical association, hospital, managed care organization, or other health care entity. They may be general in nature, or they may relate to a specific practice area.[2] Guidelines are generally created and used as recommendations to physicians and set forth acceptable practices relating to diagnosis and/or treatment of particular illnesses or medical problems. They may also include outcome measures, which evaluate what is a successful medical intervention by setting forth a range of recognized acceptable outcomes.[3] Guidelines are part of the ongoing process of evaluating the effectiveness and the efficiency of current medical practices.

Medical Malpractice

As part of a medical malpractice case, the plaintiff must prove that the defendant physician engaged in conduct that did not meet an applicable standard of care.[4] This standard is established by the medical community. Physicians, acting as expert witnesses, testify to the degree of care that a physician practicing in the specialty of the defendant physician should be required to meet. Geographic considerations may be taken into account, and both sides will present evidence of the standard of care they believe should be used. Although there is a growing trend to hold physicians to a national standard of care,[5] standards of care are established under state law and vary throughout the country.

Guidelines and Malpractice

As health care entities continue to establish more guidelines, it is logical to assume that these guidelines will be used in malpractice cases. Guidelines that are created by national associations, such as the American Medical Association, the Institute of Medicine, and the American College of Physicians, and those created in conjunction with respected physicians are most likely to be used in malpractice cases. Guidelines may be used to establish the standard of care by which the defendant physician's actions will be measured in a particular case, to contribute toward determining what that standard should be, or to impeach the testimony of the other party's expert witnesses.[6] They are not likely, however, to be used as the only factor in determining a physician's liability. Patient variations, geographic considerations, and the accepted practice of the medical community will all be factors in determining the reasonableness of a physician's actions. [7]

Hospital Liability

Guidelines have been used for some time to establish the standard of care to be used by hospitals. In the leading case in this area, Darling v. Charleston Community Memorial Hospital,[8] the Supreme Court of Illinois admitted hospital accreditation standards as evidence of the minimum standards a hospital's conduct is required to meet.[8] Guidelines may also be used to impose liability on hospitals and other health care institutions for failing to require or enforce stringent standards of its physicians. [9]

Physician Liability

The fact that a physician followed a practice guideline will not exempt him or her from liability if the guideline was not consistent with the standard of care used by the medical community. In Wickline v. State,[10] for example, a physician was held liable for failing to challenge a utilization review discharge decision. Blind reliance on guidelines is therefore not advisable. However, a physician's reliance on an established guideline, when that guideline is a reasonable example of accepted medical practice, should not subject the physician to any increased risk of liability. The guideline will serve as evidence of acceptable practice, but there is no current evidence that the guideline will be used as the determining factor in establishing the standard of care.

As guidelines become more common, their use in malpractice litigation against physicians will increase, but it does not appear likely that they will be used without reference to the specific factual intricacies of each case. Instead, guidelines should contribute to the establishment of a range of acceptable medical behavior. As one commentator has suggested: "It is unlikely that new clinical guidelines will establish a standard for determining negligence per se, but somehow will be incorporated into the current format of establishing liability through use of custom. Undoubtedly the courts will place considerable weight on guidelines developed by respected medical societies as strong evidence of appropriate custom and practice. While guidelines may not resolve factual and causation issues, they will have a strong evidentiary impact for plaintiffs and defendants alike." [11]

Medical practice guidelines are a relatively new and developing trend in this country. As increasing emphasis is placed on controlling the costs of health care delivery while maintaining quality, guidelines will likely become more prevalent. However, this does not suggest that guidelines will become tools for imposing greater liability on physicians and hospitals. Rather, the guidelines seem more likely to become further evidence of accepted medical standards.

[1.] This column uses the term "guidelines" in its most generic sense to describe the criteria established by hospitals and other health care entities to guide physicians in making practice decisions. Industry terms for such standards, recommendations, and requirements include "practice guidelines," "medical review criteria," "standards of quality," and "practice parameters." See, e.g., Rolph, E., Ed., Health Care Delivery and Tort: Systems on a Collision Course?, RAND Note N-3524-ICJ 48 (June 1991), citing Institute of Medicine, Clinical Practice Guidelines: Directions for a New Program 8 (190); American Medical Association, Legal Implications of Practice Parameters 2 (1990); Blum, J., "Hospitals, New Medical Practice Guidelines, CQI, and Potential Liability Outcomes," St. Louis University Law Journal 36(2):913-5, Summer 1992. [2.] For example, the American College of Physicians has published more than 60 reports and guidelines for specific medical practices, and in 1989 the American Medical Association established the Practice Parameters Partnership and Forum, which includes more than 65 medical specialty societies. RAND Note, supra note 1. [3.] Blum, J., supra note 1 at 914-5 (n.4). [4.] Restatement of Torts [subsections] 283,286. [5.] RAND Note, supra note 1 at 51, citing Kinney, E., and Wilder, M., "Medical Standard Setting in the Current Malpractice Environment: Problems and Possibilities," University of California at Davis Law Review, 22:421,440, 1989. [6.] Kinney, E., and Wilder, M., supra note 5. [7.] Indeed, no cases have been found in which adherence to a guideline was, in and of itself, adequate to impose liability on a physician. [8.] 211 N.E.2d 253 (Ill. 1965), cert. denied 383 U.S. 946 (1966). This case recognized liability for hospitals. [9.] RAND Note, supra note 1. In Insinga v. LaBella, 543 So.2d 209 (Fla. 1989), the Supreme Court of Florida adopted a corporate standard for hospitals that requires hospitals to exercise due care in the selection and retention of physicians. 543 So.2d at 214. One way to determine if a hospital has exercised due care in retaining physicians might be to investigate the guidelines imposed by a hospital on its physicians, with a view toward determining whether the hospital enforces compliance with the guidelines, and whether the guidelines are stringent enough to ensure that high-quality care will be delivered. [10.] 1982 Cal. App. 3d 1630, 228 Cal. Rptr. 661 (1986). [11.] Blum, J., supra note 1 at 926.

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