The Influence of Evidence-Based Guidelines on the Standard of Care in Medical Malpractice
Date Issued
2012
Date
2012
Author(s)
Lin, Ching-Ping
Abstract
This thesis aims at providing a clear, predictable, and practical judicial standard of care in medical malpractice cases. The judicial system for medical malpractice is experiencing a crisis of confidence in Taiwan. Nowadays, empirical studies show that, for a district court to close a medical malpractice case, it takes four hundred (400) days more than an average civil case. However, the percentage for a party or both parties taking an appeal is substantially higher, which suggest a lower satisfaction of court’s decision by the parties in a medical malpractice decision. In addition, waves of criticism of unfairness are casted upon the court’s decision on medical malpractice cases. This suggests a serious problem of inefficiency and ineffectiveness in our judicial system of medical malpractice.
After analyzing the recent judicial decisions on tort liability of medical malpractice cases, this thesis argues that the core issue is the unstable and unpredictable standard of care. First, the standard of care held by courts lack consistency. Most courts use the term “medical custom (醫療常規)” as the standard of care; however, the definition of “medical custom” is unclear and ambiguous and so its application. Some other courts choose to apply its own standard, but usually results in an imposition of an impractically high expectation on physicians. Furthermore, the system of expert testimony (*in Taiwan, the expert testimony is usually given by medical institutions and Medical Review Board in out-of-court written statements), which the courts rely heavily upon, has long been criticized as prejudicial and lack of transparency by both patients and physicians. This unfair, unpredictable practice of the determination of standard of care further erodes both parties’ faith and that of the society in judicial system.
To solve the problems above, this thesis proposes the following solution:
1. Re-define “medical custom” and Re-affirm the standard:
“The reasonable physician standard” is a standard that has been adopted by the courts for a long time in the name of “medical custom.” This thesis proposes that such confusion must be clarified, and the term “medical custom” must be re-affirmed as simply representing “the physicians’ general practice.” Although medical custom is an important factor to be considered when deciding “the reasonable physician standard”, it is not appropriate to make it equal to medical custom as standard of care.
2. Accept “Evidence-Based Guidelines” as a new tool in determining standard of care in addition to expert testimony:
Evidence-Based Guidelines are the suggested optimal clinical practice guidelines for physicians based on Evidence-Based Medicine. It represents the self-awareness to create standardization in medicine to improve the quality of physicians’ decision-making, and has been practiced for decades. Even though the U.S. legislation and academic discussions suggest a conservative attitude towards the use of Evidence-Based Guidelines in determining standard of care, this thesis proposes a different view.
This thesis argues that Evidence-Based Guidelines, if understood and applied correctly by the courts, has a special value on standard of care and could compensate for the insufficiency in expert testimony. Evidence-Based Guidelines have solid scientific grounds based on Evidence-Based Medicine and further provides predictability as pre-existing guidelines. Therefore, it could help eliminate the concerns of fairness and lack of transparency in regard to expert testimony. On the other hand, the expert testimony could also assist the courts to understand and apply an Evidence-Based Guideline in the case at issue. With the cooperation of both Evidence-Based Guidelines and expert testimony, the court is better equipped to determine optimal standard of care.
3. The thesis further suggests that Evidence-Based Guidelines should be the primary standard that a court uses to determine standard of care. The proposal could be shown in the decision tree chart provided in this thesis and is briefly explained as follow:
a. For the physicians who live up to the standard declared by an Evidence-Based Guideline, the court should give credit for their compliance as “non-negligent” because such standard is usually higher than the judicial expectation towards a reasonable physician. Therefore, an Evidence-Based Guideline could act as a safe harbor, which not only encourages physician to practice Evidence-Based Medicine (thus improving the quality of medical care) but also decreases defensive medicine.
b. In addition, for the same reasons stated above, the standard of care declared by a court could not exceed the standard suggested by an Evidence-Based Guideline without special justifications. This could help prevent a court from imposing impractically high standard on physicians and rendering tort liability arbitrarily.
c. For the physicians who is seriously departed from an Evidence-Based Guideline, the court must impose “an obligation to explain” to them. Deviation from an Evidence-Based Guideline does not necessary equal negligence because such standard is usually higher than what is required from a reasonable physician. Yet because every medical decision should be a rational decision, a deviating physician should at least provide legitimate reasons for his/her deviation. And for those physicians who refuse or fail to provide reasonable grounds for their deviation, the court is at its sole discretion to render negligence. This mechanism helps court to distinguish those clinical behaviors that may fall below the reasonable standard of care at the very beginning of trial, and helps to enhance full disclosure and exchange of information that would ultimately contribute to the discovery of truth.
In order to show the feasibility of my suggestion, this thesis further demonstrates the application the “Taiwan Guideline for Management of Stroke 2008,” a widely accepted Evidence-Based Guideline promulgated by Taiwan Stroke Society, in real medical malpractice cases to examine the role of Evidence-Based Guidelines in determining of standard of care.
In sum, this thesis aims at (1) introducing the new tool－Evidence-Based Guidelines－to the judicial decision-making process in medical malpractices cases and (2) proposing a new solution in determining the standard of care. However, one core issue for the court and the society to bear in mind is that, no matter how far the medicines advances, medicine is and will always be a mix of art and science, operated by human beings. Therefore, no matter how determined the court is to pursue justice, the court should always understand that “to err is human” and render every judgment with great care as well as the awareness of the influence a decision would have on physicians’ behavior; such awareness and duty of care exercise by the court would eventually determine the overall medical care that the society receives in the future.
Subjects
medical malpractice
negligence
standard of care
medical custom
Evidence-Based Guidelines
Evidence-Based Medicine
Clinical Practice Guidelines
Type
thesis
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