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Why “Standard Of Care” Must Not Be The Basis For Establishing Medical Negligence

What’s wrong with using standard of care as the threshold of medical negligence? I walked you through a case, point by point, as to how the failure to diagnose cannot be considered negligence and why the process of the differential diagnosis must be protected from the fear based legal system we operate in.

When the differential diagnosis became a legal driven process, we physicians lost our ability to offer cost effective, clinical driven medicine. We became front seat drivers in the world’s largest Ponzi scheme known as the Medicare National Bank. A 99 trillion dollar black hole of defensive medicine.
What is it about the threshold of standard of care that makes it irrational? Why is that the standard for negligence? And what exactly is it? In six years of clinical hospitalist practice, three years of residency and four years of medical school, I have never taken a lecture, never seen a presentation, and never read a book about the mystical standard of care. In fact, I find myself grasping to comprehend exactly how to define its very existence.
The great legal resource, Wikipedia, defines standard of care as

The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person. It was famously described in Vaughn v. Menlove (1837) as whether the individual “proceed[ed] with such reasonable caution as a prudent man would have exercised under such circumstances.”

It goes on to define that reasonable caution as the Bolam Test

Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (eg doctors): the “Bolam test”. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion.

I see a problem with what the standard has become. If everyone in my community orders a head CT for drunks with altered mental status, that represents an action by a responsible body of opinion. Does it mean it’s the right opinion? It does not. When the body of opinion has been contaminated by a persistent and progress fear of litigation, the standard defies the evidence, and itself creates irrational bars of achievement that can never be sustained. The responsible body has itself become irresponsible.
If we are to be a science driven profession, we must be allowed to maintain our integrity, without the fear of legal retribution for failing to uphold the irresponsible responsible body of opinion. Our standards are no longer based on science. When everyone orders the CT scan in drunks with altered mental status, the standard itself has become unreasonable.
Yet the marked deviation of the standard of care from the science of care marches on.
I have argued that standard of care is a local phenomenon. It is what ever the local community of professionals says it is, as they are the responsible body of opinion. The standard for evaluating a pulmonary embolism in downtown Chicago is not the same as the standard in rural New Mexico as it is in the jungles of Africa.
A lawyer previously responded that the local community should not set the standard. They argued that the standard should be a national, or perhaps an international evidence based standard. If science is science, there is no reason to believe that evaluating a pulmonary embolism in the United States should be any different than it is in the jungles of Africa. The most important factor in medical decision making if often not the science but the way the science is practiced on a local level.
The standard of care in McAllen, Texas is not necessarily the same as the standard of care at the Mayo Clinic. Is the cost difference legally driven or is it money driven at the local level? I suspect the contribution from both is enormous. Some argue that we should practice as Mayo practices. Mayo may be cheaper, but it isn’t cheap. I would argue that even under their payment model as a large salaried multispecialty organization with economies of scale, the ability to practice defensive medicine still thrives. Who says what costs $8,000 in McAllen but costs $5,000 at Mayo couldn’t be done for $2,000 if the victory against defensive medicine was won? I suspect it could, if physicians weren’t held to irrational standards by the unreasonable reasonable body of opinion.
If the standard in McAllen is to do a heart catheterization on everyone with chest pain, that is what the community has decided. If the standard of care at Mayo is to do a cardiac stress test, that is the standard at Mayo. If the standard in the African jungles is to do a history and physical, that is the standard in the African jungle? What is the right standard?
The right standard is the one that doesn’t get you sued.

Now, are all three standards of care based on science? No. They are based on what the community of physicians has decided should be done. There will always be a large disconnect between evidence based medicine and clinical medicine. It is not reasonable to do a CT scan to evaluate a pulmonary embolism in the jungles of Africa if that is not the standard, even if the evidence suggests otherwise. Clinical factors should always drive the medical decision making.

Some have argued the standard of care should be founded in evidence based guidelines and not local practice expectations from responsible bodies of opinion. Rarely are guidelines clinically relevant in the hundreds of decision trees physicians make every day in their diagnostic processes. Guidelines are based on studies with limited populations of patients whose neatly defined age groups have packaged disease processes. The realities of clinical medicine make many guidelines unworkable and unreasonable.

My post here is an example of the limited value of guidelines in the differential diagnostic process. Not only are the guidelines often not relevant, they are often contaminated by medical societies and other big businesses with a money driven agenda and stealth conflicts of interest.We must also remember that most guidelines are not based on science but rather based on expert opinion. All physicians are experts in their scope of practice and their opinions should therefore carry the same weight as the opinions expressed on academic based guidelines. Those that believe national standards should exist to drive standard of care practices across the vast clinical spectrum lack an understanding of what it means to be a physician.
Some lawyers wish to believe that having X, Y, and Z data points means doing A, B and C. Some wish to believe that failure to do so represents negligence as a responsible body of opinion would have done so.
I have never been introduced to this responsible body of opinion. I have no way of speaking for their recommendations. We have local culture driving decision making. We have limited national guidelines often corrupted by external influences. We have a legal system, who’s negligence is based on responsible bodies of opinion, opinions which have been established by fear driven medicine.

So what exactly does it all mean? When I order a lab or a test or a procedure or an x-ray to make my clinical decision making, I don’t sit there and think to myself, “What is the standard of care?”

I think to myself, “What is my expected action or reaction from doing this? What am I trying to accomplish?” I have never been introduced to this elusive responsible body of opinion. I have never been invited to a luncheon. This responsible body has never asked me out for a drink. I have never gone on a date with this body. I have navigated through ten years of clinical medicine and I have never once been formally introduced to this all knowing body of opinion.

By establishing the threshold of negligence as a vague responsible body of opinion, a concept which few physicians have studied, few physicians can quantify and few physicians trust, we have built exactly what the medical-legal-industrial complex has prepared for us: A high volume, high supply, high demand, high cost fear driven reality that we all pay for with out of control health care inflation.
If you think Mayo care is cheap, the time has come to consider that even the highest quality, lowest cost centers in this country could reduce their utilization of health care resources by 1/3, 1/2 or more if the fear of civil retribution for failure to diagnose was taken off the shoulders of passionate and devoted physicians from all fields of training and they were allowed the freedom to employ their differential diagnosis skills in a manner consistent with scientific inquiry and not a legal driven fear.
The longer we deny the fear, the quicker the end will be here.

*This blog post was originally published at A Happy Hospitalist*

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