Recently the head of the Center for Justice and Democracy published an article at the Huffington Post that offers a good summary of the current debate regarding the intersection of tort reform, medical standards, and patient safety. These debates have been raging for so long that it is easy to assume you have heard every argument in the book. Some assume that opinions on this matters have hardened, and little can be done to sway individuals one way or another.
The truth is that many community have yet to actually thoroughly think through the arguments. Those of us working directly in the legal system on medical malpractice (or those in the medical world), may have considered the issue ad nauseum–but 95% of the community has not. That is why it remains important to stay up to date on the latest issues and be prepared to share accurate and honest information about the matter with friends and neighbors.
In the Huffington Post article, the author reminds of the continuing problem of medical errors–hundreds of thousands of patients are affected each and every year. Reports from a diverse number of places have documented that we have yet to make serious inroads in minimizing these preventable errors.
Sadly, in response, most in the medical community completely shift focus away from the very real problem of patient safety and instead focus on the apparent evil of legal liability following these errors. For quite some time the idea of harmful “defensive” medicine has been echoed, with claims that doctors are ordering “too many test.” While there is little data to back up those claims, it does make a convenient argument in the light of budget cuts–allowing the medical lobby to push for legal changes to insulate themselves from liability.
Interestingly, the article point to the latest argument made by this lobbying group in an effort to avoid full accountability for harmful mistakes. Some are pushing for new liability rules such that doctors would not be accountable for harm so long as “clinical guidelines” are followed. While this may seem innocuous, it actually represents a significant shift away from traditional legal rules where all community members are held to a reasonable standard based on others in the same situation. Essentially, by shifting to a “clinical guidelines” argument, the idea of patient’s receiving individual care would be shattered.
This is not necessarily a new argument. It was discussed years ago and actually made its way into state law in a few cases. However, none of those laws on the on the books today, because it was a clear failure. One of the main problems is that creating clinical guidelines is supremely complications, particularly in certain medical practice areas. Trying to conform everything to a cookie-cutter scenario without any consideration of individual factors is nonsensical. It doesn’t work for patient or doctor fairness.
The bottom line is that clinical guidelines should never be turned into legal standards for accountability purposes. It didn’t work in the past and won’t make sense now.
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