Dr. Ron’s Research Review – December 9, 2015

©                                                                                                                 

This week’s research review focuses on the standards of care.

When a patient’s clinical condition warrants (eg, continued or unexpected deterioration or the onset of new symptoms), the practitioner should consider other possible explanations. The diagnosis or assessment may have to be reconsidered, and treatment changed or a referral made, as appropriate. Treatment determined to be ineffective should be discontinued. (Gilmour et al., 2011a)  

Contrary to conventional understanding, medical negligence is not simply nonconformity to norms. Two additional concepts of legal liability, ie, justification and excuse, must also be considered to properly judge medical conduct. Medical conduct is justified when the benefits outweigh the risks; the law sanctions the conduct and encourages future conduct under similar circumstances. Standard of care is an inaccurate measure of medical negligence because it is premised on the faulty notion of conformity to norms. (Brenner et al., 2012)

Outside of board exams and CME requirements, there is virtually no internal scoring of our performance. The legal community has been happy to judge us, and they created a legal term “standard of care” against which we are all to be compared. The original intent of this term was to define a minimum level of care, a lowest common denominator. If we at least offered the standard of care, we were delivering acceptable care. We would not be committing malpractice. This is nothing to brag about, but at least we were not dangerous. (Marshall, 2006)

Dr. Ron


 

Articles

Beyond the standard of care: a new model to judge medical negligence.
            (Brenner et al., 2012) Download
BACKGROUND: The term "standard of care" has been used in law and medicine to determine whether medical care is negligent. However, the precise meaning of this concept is often unclear for both medical and legal professionals. QUESTIONS/PURPOSES: Our purposes are to (1) examine the limitations of using standard of care as a measure of negligence, (2) propose the use of the legal concepts of justification and excuse in developing a new model of examining medical conduct, and (3) outline the framework of this model. METHODS: We applied the principles of tort liability set forth in the clinical and legal literature to describe the difficulty in applying standard of care in medical negligence cases. Using the concepts of justification and excuse, we propose a judicial model that may promote fair and just jury verdicts in medical negligence cases. RESULTS: Contrary to conventional understanding, medical negligence is not simply nonconformity to norms. Two additional concepts of legal liability, ie, justification and excuse, must also be considered to properly judge medical conduct. Medical conduct is justified when the benefits outweigh the risks; the law sanctions the conduct and encourages future conduct under similar circumstances. Excuse, on the other hand, relieves a doctor of legal liability under specific circumstances even though his/her conduct was not justified. CONCLUSIONS: Standard of care is an inaccurate measure of medical negligence because it is premised on the faulty notion of conformity to norms. An alternative judicial model to determine medical negligence would (1) eliminate standard of care in medical malpractice law, (2) reframe the court instruction to jurors, and (3) establish an ongoing consensus committee on orthopaedic principles of negligence.

Complementary and alternative medicine practitioners' standard of care: responsibilities to patients and parents.
            (Gilmour et al., 2011a) Download
In this article we explain (1) the standard of care that health care providers must meet and (2) how these principles apply to complementary and alternative medicine practitioners. The scenario describes a 14-year-old boy who is experiencing back pain and whose chiropractor performed spinal manipulation but did not recognize or take steps to rule out serious underlying disease-in this case, testicular cancer--either initially or when the patient's condition continued to deteriorate despite treatment. We use chiropractic care for a patient with a sore back as an example, because back pain is such a common problem and chiropracty is a common treatment chosen by both adult and pediatric patients. The scenario illustrates the responsibilities that complementary and alternative medicine practitioners owe patients/parents, the potential for liability when deficient care harms patients, and the importance of ample formal pediatric training for practitioners who treat pediatric patients.

Referrals and shared or collaborative care: managing relationships with complementary and alternative medicine practitioners.
            (Gilmour et al., 2011b) Download
In this article we discuss steps that clinicians should take after deciding to include a complementary and alternative medicine (CAM) treatment that is beyond the clinician's expertise in a patient's treatment plan. We use the example of an adolescent patient with chronic recurrent headaches that have not been relieved by medication or other therapies and whose physician refers her to an acupuncturist for treatment. We focus on (1) circumstances under which referral is appropriate, (2) the nature of the relationship between the referring clinician and the practitioner to whom the referral is made (considering conventional health care and CAM, regulated and unregulated practitioners), and (3) considerations when undertaking shared or collaborative care with other health care practitioners (conventional health care or CAM). We also suggest best practices in managing such relationships.

The standard of care in oncology is unacceptable.
            (Marshall, 2006) Download
In medicine today, we all promise to offer the best medical care available to each of our patients, and I would argue that most of us believe we are delivering on this promise. But how do we know that we are living up to that promise? Outside of board exams and CME requirements, there is virtually no internal scoring of our performance. The legal community has been happy to judge us, and they created a legal term—standard of care—against which we are all to be compared. The original intent of this term was to define a minimum level of care, a lowest common denominator. If we at least offered the standard of care, we were delivering acceptable care. We would not be committing malpractice. This is nothing to brag about, but at least we were not dangerous.


 

References

Brenner, LH, et al. (2012), ‘Beyond the standard of care: a new model to judge medical negligence.’, Clin Orthop Relat Res, 470 (5), 1357-64. PubMedID: 22395869
Gilmour, J, et al. (2011a), ‘Complementary and alternative medicine practitioners’ standard of care: responsibilities to patients and parents.’, Pediatrics, 128 Suppl 4 S200-5. PubMedID: 22045864
——— (2011b), ‘Referrals and shared or collaborative care: managing relationships with complementary and alternative medicine practitioners.’, Pediatrics, 128 Suppl 4 S181-6. PubMedID: 22045861
Marshall, J (2006), ‘The standard of care in oncology is unacceptable.’, Oncology (Williston Park), 20 (7), 806. PubMedID: 16841804