Legal Standard Of Care Research Articles

The Quiet Demise of Deference to Custom: Policy Implications in an Era of Managed Care

The health care industry has changed fundamentally in the century that has passed since physicians were first delegated the unique power to establish their own legal standard of care. The turn-of-the century (and naive) paradigm of the independent physician driven only by fidelity to patient interests has given way to modern corporate medicine. Power in the health care industry is shifting away from physicians and toward a heavily concentrated group of for-profit health insurers. In an effort to keep costs down, these entities use a variety of strategies to influence the clinical practices of their participating physicians. Under these circumstances, tort law's complete faith in medical customs is arguably a quaint relic of a simpler time. Consequently, it is not surprising that many courts are abandoning their deference to medical customs and, instead, are empowering juries, with the help of experts, to decide what a reasonable physician would have done under the circumstances. However, the prospect of a wide-spread retreat from the custom-based standard of care has fundamental policy implications. On the one hand, abandonment of the custom-based standard will improve the ability of courts to police the practices of physicians toiling in the shadow of managed care. On the other hand, it may demand more of lay jurors than we can reasonably expect of them. It may also threaten efforts to make health care more affordable. This Article explores the policy issues raised by the choice between a custom-based standard of care and a jury-determined reasonability standard. The author examines not only traditional legal arguments but also the recent findings of cognitive psychology, jury performance studies, and health industry research. Not surprisingly, this analysis reveals that both options are imperfect. However, the author cautiously recommends the reasonable physician standard. The revolutionary transformation of the health care industry in last quarter of a century has transferred considerable power from physicians to the health insurance industry, an industry that has not yet earned the privilege of self-regulation. Unlike the custom-based standard, the reasonable care standard assigns the task of standard-setting to representatives of the community and not to the regulated industry. And because the reasonable physician standard precludes unilateral establishment of the standard of care by the health care industry, it is also more likely to force the health care industry to engage the community in a conversation about health care cost and quality. For these reasons, it worth taking the risk that juries will be more resistant to cost control measures than health policy analysts would recommend.

Cancer screening and early detection: managing malpractice risk.

The purpose of this report is to educate healthcare professionals about the legal risks of conducting cancer screening examinations and necessary risk reduction practices. The authors describe the elements of a medical malpractice claim, the healthcare professionals' legal standard of care, theories of malpractice liability, common factors related to missed or delayed diagnoses, malpractice defenses, and risk reduction practices. Healthcare professionals, including physicians, physician assistants, advanced practice nurses, and social workers, have been shown to be clinically effective in cancer screening, and early detection of many cancers leads to improved long-term survival rates. Healthcare professionals who conduct cancer early detection examinations and counsel patients in cancer screening programs need to be aware of the common legal theories under which lawsuits are brought related to cancer detection examinations. Important steps in reducing the risk of malpractice include developing creative strategies to address the theories of liability in the area of cancer screening and early detection; keeping abreast of changes in national and international cancer screening recommendations; monitoring the literature for approaches to decrease liability; and scrupulously maintaining documentation of all findings and interactions among providers and between providers and patients.

Use of Practice Parameters as Standards of Care and in Health Care Reform: A View from the American Medical Association

Guidelines that are standards of care could limit the creative initiatives to find ways of caring for patients which do not conform to traditional medical practice but result in good outcomes. Physicians would likely feel hemmed in by guidelines that constitute an express legal standard of care and would be afraid to deviate from them except under the auspices of carefully controlled research protocols.

Medical malpractice and the legal standard of care

In this essay, I examine the relationship between lawsuits for medical malpractice and the legal standard of care. I suggest that there is an insidious, dynamic relationship between physicians' reactions to the recent increase in malpractice litigation and an artificial elevation of the legal standard of care. Since, that is, the legal standard for proper medical care is based upon the community standard of care rather than the reasonable person standard, to the extent that overtreatment or “defensive” medicine becomes widespread as a reaction to malpractice litigation, the legal standard becomes elevated as well. Thus, it will increasingly be the case that unless a physician practices defensive medicine, and hence practices unreasonably, she risks being found liable for medical malpractice.

Establishing the legal standard of care

Establishing the legal standard of care

Electronic fetal monitoring and obstetrical malpractice.

The standard of care with regard to any new medical technology develops slowly. Attitudes must change, and equipment must be purchased, installed and utilized. Technical problems must be resolved and protocols established. Advances are better understood and more aggressively pursued by some physicians than others, with a consequent disparity in implementation. Electronic fetal monitoring (EFM) is an example of such a technology. Little known to obstetricians 15 years ago, EFM has been accepted by practitioners widely and rapidly. Today, armed with guidelines from the American College of Obstetricians and Gynecologists (ACOG) and the recommendations of the National Institutes of Health (NIH), we monitor with EFM most obstetrical patients during labor and almost all high-risk patients before labor. While the practice or custom of a majority of obstetricians does not necessarily define the standard of care, the use of EFM for fetal surveillance during labor represents the prevailing medical and legal standard of care.