How Following the Standard of Care Can Get You Sued

Neil Chesanow

Disclosures

March 27, 2015

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

Many doctors believe that following the standard of care in treating patients is ironclad protection against a lawsuit for medical malpractice. Not so, as a recent Medscape article by an emergency physician and attorney pointed out.

"Although guidelines may help guide diagnosis and treatment of disease, their use is not limited to clinical purposes," the author wrote. "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."

The article examined payment guidelines issued by insurers, including Medicare and Medicaid; clinical practice guidelines issued by specialty societies, of which there are more than 2500 related to diseases and thousands more related to treatment of disease; practice guidelines arising from the Choosing Wisely® initiative; the validity of quality indicators issued by the Centers for Medicare & Medicaid Services for hospitals; and "safe harbors," legislative guidelines created to protect practitioners from lawsuits.

In each instance, adhering to the guidelines could help a doctor's case or doom it, depending on the facts and their situational context. The author concluded, "The most judicious use of guidelines is to treat them as general outlines subject to change as our knowledge of medicine evolves, rather than as strict directives of medical diagnosis and management."

"The take-away from this article is: Damned if you do, damned if you don't," a preventive medicine specialist commented. "One would have thought the creation of the Affordable Care Act would address issues of malpractice and evidence-based medicine, since that is what is being touted, and should help save money and unnecessary testing. But no, that was not done. So here we are, left with this conundrum that gives no protections for use of guidelines; no help for reducing frivolous lawsuits; and no remedies for costly, unnecessary testing."

"Clearly, guidelines cannot and should not be relied on to provide bulletproof protection against malpractice suits," a general practitioner wrote. "As helpful as they may be, guidelines, like medical textbooks, provide some basic knowledge about diagnosis and treatment. But seasoned physicians will know that patients have subtle nuances that set them apart from others who may have the 'same' disease, whether it is diabetes, high blood pressure, or migraine headache."

"Both overdiagnosis and underdiagnosis are a constant worry for litigation," a rheumatologist warned. "Acts of omission or acts of commission both can be used for a suit. Chart documentation is key. Never write a note than can later be used against you. For example, 'We requested a surgery consult, but the surgeon never saw the patient.' The truth is that you don't know for sure what caused the patient's problem. So do not ever do the lawyers' work for them. Realize that, unfortunately, disease complications and medication side effects can always occur regardless of fault."

"Since absolute 'standard(s)' rarely exist," an anesthesiologist lamented, "it is always easy for a trial attorney to wave a few hundred-dollar bills in front of a physician expert witness and find a contrary opinion."

"Let's face it: A good malpractice attorney will always find a way to argue in favor of his clients," a pediatrician noted. "We really should not be practicing medicine that puts the potential for lawsuits as our guiding principles. We should simply do what is right for the patient. Choosing Wisely® has truly been a great conversation starter. It has made us think of why here in the United States, our outcomes are some of the worst among industrialized countries, and yet we spend twice as much as others on healthcare."

"You can be sued for any reason or for no reason," another pediatrician agreed. "The Choose Wisely® program is simply and clearly stating where there is and isn't evidence for diagnosis and treatment for certain disorders, so that most doctors will consistently treat these conditions in an appropriate, evidence-based manner. The guidelines are spelling out how to practice good medicine. Let's focus on that and not whether we are going to be sued or not. Good medicine. That is the point."

"They don't need doctors here," an anesthesiologist fumed. "They need functionaries and apparatchiks, not physicians. They need data-entry clerks to practice guideline medicine so they can save their cents. It has zero to do with the delivery of quality care and everything to do with cookbook medicine."

"The article states: 'The potential conflict between clinical practice guidelines or quality measures and generally accepted medical care underscores the need to review the research and studies supporting the guidelines, and to compare the guidelines with current literature when deciding whether the guidelines constitute appropriate medical practice— for purposes of both clinical care and malpractice litigation,'" a family physician observed. "The practicing physician cannot contemporaneously review the supporting data for every guideline. Supposedly that work was done for him or her by the people who wrote the guideline. If the data have to be reviewed before making a clinical decision, then the guidelines are worthless and should be eliminated on the basis of their negative risk/benefit ratio."

"It is a shame that medicine has to be practiced in such a defensive manner," wrote a radiation oncologist. "The problem fundamentally lies in the constant societal desire to have it both ways—meaning no possibility of a bad outcome, as well as cost containment. That these two desires are at odds has been ignored for decades, and thus we have the rather absurd, complex, and incredibly expensive system we have today. I would love to see a shift away from punishment for bad outcomes and toward reasonableness of healthcare treatment."

"Most people define the 'standards of care' as the actions that a similarly trained physician would do (or not do) with a similar patient under similar circumstances," an anesthesiologist maintained. "Rarely are physicians held to that measure, and a good trial attorney can always find individuals who can provide contrary opinions. Since absolute standards are, by and large, nonexistent, most trials are decided based on conjecture and patient outcome. Unfortunately, malpractice judgments exact tremendous personal and financial tolls on physicians and provide little solace to anyone other than the trial attorneys. The bottom line is, do your best and realize that the system is stacked against the physician."

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