What is malpractice?

Standard of Care Remains a Moving Target in Medical Malpractice Cases

Courts in 21 states adhere to a local or community standard of care in medical malpractice cases, slowing implementation of evidence-based, resource-based, nationwide standards.

So said Michelle Huckaby Lewis, M.D., J.D., of Johns Hopkins and Georgetown University, and colleagues in a commentary in the June 20 issue of the Journal of the American Medical Association.

The locality rule was a 19th century concept intended to protect rural physicians from being held to the same standards as physicians working in urban areas or at academic institutions, the authors said.

But, they note, modern communication has removed barriers to standardization — no place is more than a phone call or a mouse click away from the latest evidence-based findings.

As a result, a rule originally intended as a protection now “imposes additional duties and legal risk on physicians. Not only must they remain aware of advances in their own specialty, physicians must also be aware of the standard of care in their locality, whether or not that standard is considered substandard at the national level,” the authors wrote.

For example they point out that Virginia, which is one of the states that follows the locality rule, has a “statutory presumption that each physician knows the standard of care in the state, although it is unclear how a physician may be expected to obtain this knowledge.”

Moreover, physicians who practice in more than one state could be required to heed two or more different standards of care.

Dr. Lewis and colleagues contend that the locality rule is also ethically suspect. In the communities that use it, “basic principles of justice may not be met for patients who have been harmed as the result of suboptimal local care standards,” they wrote.

Should we have different standards for medicine according to state, or worse locality?

Our current malpractice system is not well considered, because it is not a system. Rather it represents inconsistent arrangements judged by juries who are peers of the complaining party, but not of the medical professional.

Our system lacks logic. As my previous posts imply, trying to argue logic here will not work. Trial lawyers eschew logic for sophistry.

I would love to see a national standard for judging malpractice. Of course I would love to see a national system of health courts. I would love to see consistency. But then I am a dreamer.