Clinical Practice Guidelines are not new, but only since the early 1990s have they explicitly identified useful tests and therapies, and deprecated traditional but useless procedures.
In the early years (1990-1992) of Evidence-Based Medicine, a survey of nearly six hundred US malpractice attorneys found that in only 17 of 259 suits were Practice Guidelines used in legal argument. The Guidelines were used to prosecute three times as often as they were used to defend the physician. However, guidelines which tended to exculpate the defendant did discourage attorneys from initiating suits.
Physicians have generally been slow to accept and apply them. Some medical insurers have lowered premiums for physicians demonstrating continuing education in, and adherence to, Practice Guidelines. Some jurisdictions have granted immunity from medical malpractice prosecution to clinicians who have followed them.
Managed care facilities inevitably give considerable weight to cost-containment in their Practice Guidelines. Adverse Judgments have discouraged physicians from expanding the use of such Guidelines, because they perceive them as minimal, or even substandard.
Medical negligence lawyers need to be aware that Guidelines may be discredited where clarity has been achieved at the expense of scientific validity. In US Federal cases, judges must actively screen new scientific evidence for relevance and reliability.
Construction of Practice Guidelines may be vulnerable to challenge.
An early review in US medical negligence practice reports that both plaintiff and defence attorneys are increasingly using Clinical Practice Guidelines, with good effect. Legislators, however, seem to be so far interested only their exculpatory potential.
This is a two-way street in that medical malpractice caselaw is now being used to craft PracticeGuidelines.
Copyright © 2009 Electronic Handbook of Legal Medicine