A "New Legal Standard" for Malpractice
I'm not sure if this is a good thing or a bad thing.
Much discussed is the practice of “defensive medicine” and a “zero-miss” culture within U.S. healthcare – and the impact this has on burnout, over-testing/over-diagnosis, and the cost burden added to the healthcare delivery complex. The contribution of malpractice tort is certainly a topic ripe for re-examination, ideally with an eye towards streamlining compensation, while allowing for a spectrum of reasonable care from imperfect human actors.
This article in JAMA discusses a restatement of the liability standard by the American Law Institute, an unofficial but influential expert body that can effectively set de facto standards for courts.
The old standard is represented as such:
“[O]ne who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.”
This has been revised in the new advice to include statements such as:
“The standard of reasonable medical care is the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances.”
“those who have less than median or average skill may still be competent and qualified.”
The gist of the discussion seems to be a migration away from a standard based on “customary” practice, but rather to current guidelines or evidence. While this is reasonable, in theory, it fails to account for issues in guidelines or problems with the body of medical evidence – and the so-called “slow to adapt” physicians are, in their own way, exercising a reasonable standard of care with respect to allowing maturation of the evidence.
It is certainly a new wrinkle in considering how cases will play out in malpractice tort, and I’m not sure it does much to help reduce the stresses upon practicing clinicians. It’s certainly an article worth a read, at the least.