Why 'Choosing Wisely' Won't Protect You in a Lawsuit

William Sullivan, DO, JD


October 27, 2017

In This Article

Will 'Guidelines' Protect You Against Malpractice Risk?

In order to win in a medical malpractice case against a physician, a plaintiff must prove that the physician owed the patient a duty, that the physician breached the duty, and that the physician's breach in duty caused the patient to suffer damages. A key aspect in a vast majority of malpractice litigation involves whether a physician breached a duty to a patient, which plaintiff attorneys call negligence.

There are many ways in which litigants can demonstrate what a physician's duties were (the "standard of care") and whether the physician lived up to those duties.

What's the Standard of Care?

Expert witness testimony is the most common method by which malpractice litigants try to prove whether the standard of care was met. An expert reviews a patient's medical records and then, on the basis of the expert's knowledge and experience, the expert renders an opinion regarding the appropriateness of the patient's medical care.

Adherence to guidelines is another method by which litigants may attempt to prove whether a physician met the standard of care. Guidelines are generally not admissible as evidence in medical malpractice litigation without an expert's testimony that the guidelines apply to the issues in the case. For example, in Shell v. St. Francis Medical Center Inc (48613-CA, La. App. 2 Cir., 2013),[1] the Louisiana Court of Appeals held that guidelines regarding treatment of a spider bite were insufficient to establish the standard of care for managing an abscess and were also insufficient to show how alleged deficiencies in treatment may have caused the patient's injuries, stating, "this is not a case where medical expert testimony was not needed."

Similarly, in Laskowski v. US Dept of Veteran's Affairs (918 F. Supp.2d 301 (2013)),[2] the federal court focused on expert testimony about applicability of institutional guidelines before ruling that the standard of care required clinicians treating post-traumatic stress disorder to be familiar with treatment guidelines and only to deviate from them for compelling reasons.

Although guidelines may help guide diagnosis and treatment of disease, their use is not limited to clinical purposes. Guidelines may also be used by insurance companies to approve or deny payment. The nuances in the underlying purpose of guidelines highlight the importance of examining the intent of guidelines before offering them as evidence in a medical malpractice case.


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