Role of Evidence-Based Guidelines in Medical Malpractice
Medical errors rank behind heart disease and cancer as the third leading cause of death in the United States (see BMJ 2016; 353:i2139), with over 250,000 deaths a year. 700 a day. And despite tort reform, medical malpractice litigation will never entirely disappear. It remains important for physicians to understand the elements of a malpractice claim not only to protect themselves but more importantly to improve patient care.
The most confusing aspect of a medical malpractice claim is the standard of care element, and this is further complicated by the increasing use of evidence-based guidelines (EBG) or practice guidelines. In some countries, EBG provide the legal standard of care, while most common law countries such as UK, Australia and New Zealand place great reliance on guidelines but allow courts discretion in accepting them on a case by case basis.
In the United States, most courts allow testimony using EBG both for and against physicians. Whether a particular guideline applies to a specific case is simply another argument for the expert witnesses with the jury deciding who to believe. In most cases, the actual written EBG may not be admissible as an exhibit. It would fall into the same category as learned treatises and medical journals – the witness can talk about it and be cross-examined, but the document itself is not admissible. Some courts have adopted a more liberal approach by admitting EBG as demonstrative aids. Regardless of which approach, a physician on trial for malpractice must recognize that although EBG are not sacrosanct, any deviation from the guideline represents a very powerful argument to the judge or jury.
Neurologist and Attorney James C. Johnston, MD, JD and renowned medical malpractice attorney Thomas P. Sartwelle published the seminal article on expert witnesses discussing guidelines in the Journal of Child Neurology (http://journals.sagepub.com/doi/abs/10.1177/0883073813479669).
Dr. James C. Johnston is one of the very few neurologists in the world that is also qualified in law, and licensed to practice both professions. He wrote the comprehensive chapter on advancing a neurology malpractice claim in Preparing and Winning Medical Negligence Cases, Third Edition (http://www.jurispub.com/Neurology-Chapter-11-Preparing-And-Winning-Medical-Negligence-Cases-Third-Edition.html).
He has published a number of journal articles and book chapters on how neurologists can improve patient care and protect themselves from malpractice claims. These publications include book chapters in multiple editions of the American College of Legal Medicine textbook Legal Medicine and Medical Ethics, the Medical Malpractice Survival Handbook, and the landmark three volume treatise Legal and Forensic Medicine. Dr. Johnston has published peer-reviewed articles in Neurology Clinics, Journal of Child Neurology, Headache, Medical Law International, Journal of Legal Medicine, Medicine and Law, and a number of other journals.
In a recent Neurologic Clinics, Dr. Johnston published a case studies article highlighting specific neurology claims related to malpractice (https://www.neurologic.theclinics.com/article/S0733-8619(16)30011-1/abstract). This was co-authored with Thomas P. Sartwelle and leading neurosurgeon Professor Dr. Knut Wester, with the purpose of providing recommendations to improve patient care and safety.