Practice guidelines and medical malpractice litigation

Medicine and Law

Volumn 16, Issue 1, 1997, Pages 29-39

  King, Josephine Y ^a  

^a Pace Law School   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

LAW SUIT; LEGAL LIABILITY; MALPRACTICE; MEDICAL LIABILITY; MEDICARE; PRACTICE GUIDELINE; REVIEW;

EID: 0031544959     PISSN: 07231393     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (39)

1. M.J. Field & K. N. Lohr, Guidelines for Clinical Practice: From Development to Use 2 (Washington, D.C., National Academy Press, 1992).
2. See A. M. Capron, Practice Guidelines: How Good are Medicine's New Recipes? 23 J.L., Med. & Ethics 47 (1995); L. Uztch, Practice Guidelines for Med-Mal Litigation, Pennsylvania Law Weekly at S.2 (July 17, 1995).
3. See A. M. Capron, Practice Guidelines: How Good are Medicine's New Recipes? 23 J.L., Med. & Ethics 47 (1995); L. Uztch, Practice Guidelines for Med-Mal Litigation, Pennsylvania Law Weekly at S.2 (July 17, 1995).
4. See M. Hall, The Defensive Effect of Medical Practice Policies in Malpractice Litigation, 54 J. L. & Contemp. Prob. 119, 140 (1991) (hereinafter Hall); E. D. Kinney & M. M. Wilder, Medical Standard Setting in the Current Malpractice Environment: Problems and Possibilities, 22 U. C. Davis L. Rev. 421 (1989) (hereinafter Kinney).
5. See M. Hall, The Defensive Effect of Medical Practice Policies in Malpractice Litigation, 54 J. L. & Contemp. Prob. 119, 140 (1991) (hereinafter Hall); E. D. Kinney & M. M. Wilder, Medical Standard Setting in the Current Malpractice Environment: Problems and Possibilities, 22 U. C. Davis L. Rev. 421 (1989) (hereinafter Kinney).
6. Hall at 125; Kinney at 428-440.
7. K. N. Lohr, Guidelines for Clinical Practice: What They Are and Why They Count, 23 J. L., Med. & Ethics 49-50 (1995) (hereinafter Lohr).
8. Hall, supra n. 3, at 137 urges recognition of the difference between use of practice norms to judge the adequacy of care and use to screen cases for peer review or eligibility for Medicare payment. HMOs (Health-Maintenance Organizations) and PPOs (Preferred Providers Organizations) use parameters in utilization review, pre-admission evaluations and quality assurance review.
9. See Lohr, supra n.5, at 50.
10. Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239, 42 U.S.C. § 299. Congress also established the Physician Payment Review Commission, which supports development of medical practice policy.
11. 42 U.S.C. § 299 b-1(a).
12. Lohr, supra n.5 at 55-56, n.6: As of winter 1995, AHCPR guidelines have been published on the following topics; acute pain management (for operative or medical procedures and trauma); urinary incontinence in adults; prediction and prevention of pressure ulcers in adults; management of functional impairment due to cataracts; depression in primary care (both detection and diagnosis, and treatment); sickle cell disease (screening, diagnosis, management, and counseling in newborns and infants); evaluation and management of early infection with the human immunodeficiency virus; diagnosis and treatment of benign prostatic hyperplasia; management of cancer pain; diagnosis and management of unstable angina; evaluation and care of patients with heart failure (left ventricular systolic dysfunction); otitis media with effusion in young children; quality determinants of mammography; acute low back problems in adults; and treatment of pressure ulcers. Topics under development (with expected dates of release extending into 1996) include: post-stroke rehabilitation; cardiac rehabilitation; recognition and initial assessment of Alzheimer's and related dementias; smoking prevention and cessation; screening for colorectal cancer; chronic headache pain; and an update on urinary incontinence in adults. Under consideration are guidelines for panic disorder, osteoporosis, and early detection of breast cancer.
13. C. M. Grogan, R. D. Feldman, J. A. Nyman & J. Shapiro, How Will We Use Clinical Guidelines? The Experience of Medical Carriers, 19 J. Health Politics, Pol'y and L. 7, 9-10 (1994) (hereinafter Grogan).
14. Carriers are fiscal intermediaries for the federal government's Medicare Program - Part B physician and ambulatory services. The federal government is the major payer for health care services. Carriers administer the reimbursement of physicians for services to Medicare patients. The carriers very often are private health insurance companies. The system utilized for the Medicaid (federal-state assistance) program is similar.
15. Grogan, supra n. 11, at 11.
16. Id. at 11, 12, Table 1. The Health Care Financing Administration (HCFA) supervises the Medicare Program and the carriers. HCFA has required carriers to develop prepayment screens for certain treatments. In addition, carriers are authorized to formulate local treatment parameters. As an example, a HCFA mandated parameter for chiropractic care permits 12 spinal manipulations per year.
17. Id. at 16.
18. Id. at 17.
19. Id. at 16. Grogan found that carriers generally utilize claims examiners with little medical training. Physicians have been critical of the process which permits such personnel to make medical practice decisions.
20. Id. at 20.
21. Id. at 21. "... as with prepayment treatment parameters, the designated thresholds... have nothing to do with clinical guidelines - not only are they arbitrary but the statistical norms from which the selected providers deviate, are based on aggregate costs and utilization figures."
22. A. L. Hyams, J. A. Brandenburg, S. R. Lipsitz, D. W. Shapiro & T. A. Brennan, Practice Guidelines and Malpractice Litigation: A Two-way Street, 122 Ann. Intern. Med. 50 (1995) (hereinafter Hyams I); A. L. Hyams, D. W. Shapiro & T. A. Brennan, Medical Practice Guidelines in Malpractice Litigation: An Early Perspective, 21 J. Health Politics, Pol'y & L. 289 (1996) (hereinafter Hyams II).
23. A. L. Hyams, J. A. Brandenburg, S. R. Lipsitz, D. W. Shapiro & T. A. Brennan, Practice Guidelines and Malpractice Litigation: A Two-way Street, 122 Ann. Intern. Med. 50 (1995) (hereinafter Hyams I); A. L. Hyams, D. W. Shapiro & T. A. Brennan, Medical Practice Guidelines in Malpractice Litigation: An Early Perspective, 21 J. Health Politics, Pol'y & L. 289 (1996) (hereinafter Hyams II).
24. Hyams I at 452.
25. Id. at 453.
26. Id. at 453-54.
27. See Me. Rev. Stat. Ann. § 2975.
28. Hyams I at 454.
29. Id.
30. Id. at 455.
31. Me. Rev. Stat. Ann. tit. 24 § § 2971-79 (West Supp.1995). See also J. Begel, Maine Physician Practice Guidelines: Implications for Medical Malpractice Litigation, 47 Maine L. Rev. 70 (1995) (hereinafter Begel); G. W. Kuc, Practice Parameters as a Shield Against Physical Liability, 10 J. Contemp. Health L. & Pol'y 439 (1993).
32. Me. Rev. Stat. Ann. tit. 24 § § 2971-79 (West Supp.1995). See also J. Begel, Maine Physician Practice Guidelines: Implications for Medical Malpractice Litigation, 47 Maine L. Rev. 70 (1995) (hereinafter Begel); G. W. Kuc, Practice Parameters as a Shield Against Physical Liability, 10 J. Contemp. Health L. & Pol'y 439 (1993).
33. The specialties selected are Anesthesiology, Emergency Medicine, Obstetrics and Gynecology and Radiology. The Maine Board of Licensure in Medicine is authorized to go beyond the four specialties and develop parameters and protocols in other medical areas. Me. Rev. Stat. Ann. § 2979. Physicians practicing in a specialty for which parameters have been developed may elect to participate in the project. Id. § 2976.
34. Begel, supra n.28, at 79 summarizes the anesthesiology, O-G and radiology guidelines appearing in Maine's administrative law: 7 Me. Code of Rules § 02 373 020, - 024, -026 (1991). By way of illustration, the "obstetrics guidelines contain ten detailed practice parameters regarding Cesarean deliveries, hysterectomies, tocolysis, ectopic pregnancies, breech deliveries, perinatal herpes simplex virus infections, intrapartum fetal distress, and prolonged pregnancy."
35. Section 2975 states: Application to professional negligence claims 1. Introduced by defendant. In any claim for professional negligence against a physician or the employer of a physician participating in the project established by this subchapter in which a violation of a standard of care is alleged, only the physician or the physician's employer may introduce into evidence, as an affirmative defense, the existence of the practice parameters and risk management protocols developed and adopted pursuant to section 2973. 2. Burden of proof; parameters and protocols. Any physician or physician's employer who pleads compliance with the practice parameters and risk management protocols as an affirmative defense to a claim for professional negligence has the burden of proving that the physician's conduct was consistent with those parameters and protocols, in order to rely upon the affirmative defense, as the basis for a determination that the physician's conduct did not constitute professional negligence. If the physician or the physician's employer introduces at trial, evidence of compliance with the parameters and protocols, then the plaintiff may introduce evidence on the issue of compliance. This subsection does not affect the plaintiff's burden to prove the plaintiff's cause of action by a preponderance of the evidence as otherwise provided by law. 3. No change in burden of proof. Nothing in this subchapter alters the burdens of proof in existence as of December 31, 1991, in professional negligence proceedings.
36. Id.
37. Begel, supra n.28, at 84-85. The defendant would attempt to obtain summary judgment; but a motion for summary judgment would be denied if material facts were in dispute. The author also notes numerous difficulties in implementing the affirmative defense because of the regulations and requirements pertaining to Maine's pre-litigation screening panel. Id. at 81-83.
38. Hyams I supra n.20, at 453.
39. U.S. Const. Amend. XIV.