What follows is excerpted from a recent healthcare reform briefing paper by Chad Karls, “Retooling Medical Professional Liability”:
Clinical guidelines are not a new idea, but the idea of using them to shield doctors from malpractice lawsuits has gained some purchase of late. The idea is to establish a list of agreed-upon, evidence-based guidelines, which, if followed, would give physicians and other healthcare providers safe harbor from claims of malpractice. In addition, if physicians are in fact protected from medical negligence lawsuits provided they follow such guidelines, this could have an additional and significant benefit of reducing the level of defensive medicine that takes place.
Several versions of this idea have been attempted in the past, the largest of which was in the state of Maine in 1990, when the Maine legislature enacted the Medical Liability Demonstration Project. This program involved doctors working in four specialties, the majority of which participated in the program. The program reached its sunset and was not renewed as it proved less than successful.
Several significant obstacles complicate the role of clinical guidelines with regard to MPL:
- First, advances in medicine are ongoing, which requires constant review and updates to clinical guidelines.
- Second, guidelines often address the uncomplicated, typical case and patient conditions. As a result, legal arguments can be constructed (fairly or not) and may then be advanced that the guidelines are not definitively and precisely applicable. Or, in the event of an unusual case or unusual patient conditions, arguments might be advanced that deviation from guidelines constitutes inappropriate practice and therefore culpability.
- Finally, medical guidelines have not been developed for the totality of conditions and cases that may be presented.
Can these obstacles be overcome? The question might be rephrased: Can guidelines be held in the proper context? Clinical guidelines are intended to help inform physicians in the practice of quality, efficient care; they can play a role in moving toward a healthcare system founded on best observed medical practices. They are not a substitute for sound clinical judgment in specific cases–especially where unique or extenuating circumstances may be present.
So long as medical professional liability claims continue to be handled through a highly adversarial process (versus a genuine fact-finding process) clinical guidelines may offer only limited help in retooling the MPL environment.
Click here to see the full paper, including citations.