Academic journal article Health Law Journal

Clinical Practice Guidelines and the Legal Standard of Care: Warnings, Predictions, and Interdisciplinary Encounters

Academic journal article Health Law Journal

Clinical Practice Guidelines and the Legal Standard of Care: Warnings, Predictions, and Interdisciplinary Encounters

Article excerpt


Medical malpractice is an increasingly complex area of law, largely due to the intersection of law and science that it demands. There is ongoing debate over the appropriate role that science should play in the legal context, and medical malpractice will invariably continue to be at forefront of such discussions. In order to integrate scientific information appropriately into the legal context, various tools have been used to supplement and support the testimony of experts. One of the most prominent of these tools is the clinical practice guideline (CPG). In this article, the role of CPGs in medical malpractice litigation will be discussed, and some of the problematic aspects of their use will be highlighted, in an attempt to facilitate prudent integration of medical science into the law. Bridging this interdisciplinary gap is essential in order for both professions to continue to act and evolve in the best interests of the public they serve.

This article aims to provide useful insight to both health care and legal professionals. To that end, the article includes basic overviews of the medical malpractice system, evidence-based medicine (EBM), and CPGs in order to increase the accessibility of subsequent material for readers from various disciplines. Part I contains a brief overview of the medical malpractice system, including the elements of a medical negligence claim and the major critiques of the malpractice system. Part II provides an overview of EBM, CPGs, and their relationship. In Part III, the primary problems, limitations, and biases inherent in CPGs are discussed in relation to their use in the legal context. Finally, Part IV discusses the role of CPGs in determining the standard of care in light of the legal significance of professional custom and recent Canadian case law.

PART I: Medical Malpractice Law in Canada

The term "malpractice" is generally used to describe medical negligence actions, although the term's definition has not been clarified by legislation or the courts. (1) For the purposes of this discussion, "malpractice" will be used to describe negligence, and the terms will be used interchangeably.

Plaintiffs in medical negligence actions, as in all negligence cases, must prove several discrete elements in order to succeed. As outlined by Ellen Picard and Gerald Robertson, these elements are:

a) the defendant must owe the plaintiff a duty of care;

b) the defendant must breach the standard of care established by law;

c) the plaintiff must suffer an injury or loss; and

d) the defendant's conduct must have been the actual and legal cause of the plaintiff's injury. (2)

The existence of a doctor's duty to a patient is not typically an area of serious contention in medical malpractice cases, as the duty arises upon formation of the doctor-patient relationship. (3) However, some issues may arise in scenarios where multiple practitioners are involved, and the extent to which individual doctors may rely on the duty of others is unclear. (4) Picard and Robertson explain that the duty placed on a doctor is multifaceted and includes "attendance, diagnosis, referral, treatment and instruction." (5)

The second element that must be proven in a successful medical negligence action is a breach of the standard of care. A doctor will be liable for damages that result from care that falls below the standard of "a reasonable medical practitioner considering all the circumstances." (6) This standard of care is a modified version of the generic "reasonable person" negligence standard, recognizing that doctors hold themselves out as possessing specialized skill and expertise, and are expected to conduct themselves with reasonable competency in relation to their qualifications. (7) The standard of care is further modified based on an individual doctor's qualifications such that medical specialists must meet a higher standard of care than general practitioners. …

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