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Legal Perspective: Benefits and Risks of Using Guidelines


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Legal Perspective: Benefits and Risks of Using Guidelines

By Tom A. Augello, CRICO

Related to: Clinical Guidelines, Diagnosis, Cures Act: Opening Notes, Emergency Medicine, Primary Care, Obstetrics, Other Specialties, Surgery

The legal counterpoint to Dr. Graber’s advocacy for guidelines and algorithms at the June 2009 patient safety summit (see the Medical Perspective article) was offered by Boston malpractice defense attorney Ellen Epstein Cohen, of Adler, Cohen, Harvey, Wakeman & Guekguezian. Attorney Cohen has successfully defended numerous malpractice cases on behalf of the top physicians and hospitals in Boston.

Cohen stated that, in offering counterpoints to written guidelines, she does not oppose their use.

“What these documents are geared toward,” Cohen explained, “is helping physicians achieve best practice in a most consistent actuarial way.” She pointed to the Guidelines and Algorithm section of the CRICO website, which says:

As with all clinical decision, documentation of adherence to a specific guideline or the rationale for an alternate course of action is crucial for ongoing care and for the defense of any subsequent challenge of a patient’s diagnosis or treatment.

“Challenge” equals plaintiff’s lawyer, Cohen noted.

“This particular language from the website,” she continued, “is very important:”

CRICO is frequently asked if a guideline, algorithm, or similar decision support tool can be cited in a medical malpractice lawsuit as the standard of care. The answer is no. The standard of care is determined in a court. It is the consensus among experts of the typical practice of an average clinician in the local setting. These guidelines and algorithms are not mandatory but rather advisory.

Cohen emphasized that this is a true and accurate legal statement.

Her caution to the audience was to remember that in any lawsuit, establishing the standard of care is the plaintiff’s burden. It’s also their burden, Cohen said, to prove to the jury that, under the circumstances of this particular case, the physician(s) did not meet that standard of care.

“From a legal perspective,” Cohen said, “the counterpoint is that the defense following a guideline can effectively shift that burden of proof.” That, in turn, can force the defendant to prove either, 1) why this was the standard of care and it was proper to follow even though the outcome may not have been ideal, or 2) why for this patient, in these circumstances, the algorithm or guideline did not apply. She added that the key to being able to prevail with those arguments is documentation.

“So if you’re going to follow an algorithm or a guideline while providing care for a common patient presentation situation,” Cohen concluded, “make sure you understand it, you review it carefully, and you document why you did or didn’t follow a certain protocol.”


April 1, 2010
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