Practice Guidelines Expected to Decrease Physician Liability

FORT LAUDERDALE, Fla--Rather than increasing the number of medicalliability cases, good practice guidelines should actually decreasethe number of lawsuits, particularly frivolous ones, Frances H.Miller told attendees at the first annual conference of the NCCN(National Comprehensive Cancer Network). The meeting served asa showcase for the Network's preliminary practice guidelines foreight different cancers.

"The bottom line is, good guidelines based on good medicinewill be good law," said Prof. Miller, of Boston University,where she is professor of law in the School of Law and professorof public health in the School of Medicine.

There is widespread confusion and fear among physicians abouthow practice guidelines will impact on liability issues, Prof.Miller told the audience. Once doctors understand what constitutesmalpractice, these fears should be allayed.

"The medical malpractice standard is what doctors actuallydo in practice. That is the standard of care you must meet,"Prof. Miller said. If a physician practices good medicine, ie,does what a similar doctor would do in a similar situation, heor she has nothing to fear from the legal system.

Will Customary Care Decline?

But what doctors actually do varies immensely, she added, and"customary" medical practice has changed over time.

"Customary medical practice in the past has led to some excesscare because we lived in a cost-pass-through reimbursement milieu,"Prof. Miller commented. Now, with the "advent of managedcare with teeth," there is some concern that customary carewill decline to a level below that which is considered "adequate"care.

Good practice guidelines, however, will work to narrow the gapbetween excess care and inadequate care, not only by cutting downon substandard care, ie, getting care to underserved patients,but also by cutting down on unnecessary care.

Guidelines, however, will not replace customary practice as thestandard of care. "Customary practice will simply shift (ornot) to reflect the observance (or not) of guidelines. What doctorsactually do will still be the standard against which their professionalconduct is measured," Prof. Miller commented.

The development and use of good guidelines will, ideally, resultin better medicine being practiced, and thus less medical malpractice,Prof. Miller believes.

Use of guidelines should also lessen any uncertainty about whatconstitutes medical malpractice. "You won't get the frivolouslawsuits when you've followed good guidelines," she said.

Defining 'Good' Guidelines

Prof. Miller defined "good" guidelines as authoritativerecommendations developed, in good faith, by reputable professionalsbased on the available scientific evidence and tied to good outcomesdata.

Problems, and the potential for increased liability, may arise,she said, when development of practice guidelines is driven bycost containment or social welfare objectives.

Prof. Miller predicted that with the use of guidelines, managedcare organizations, rather than doctors, may be a more frequenttarget for lawsuits, as, for example, when physicians are forcedto adhere to a guideline by financial or other incentives/detrimentsor by an appeals process that is difficult to navigate. "Physicianswill less often be the scapegoat," she said.