Personal Injury Law

The Reality of Liability and Evidence-Based Medicinal Standards

By Steven M. Levin and John J. Perconti

Several recent letters to the editor published in the New York Times emphasize important points in the on-going debate about tort reform laws, medical care standards, and the rights of victims of medical malpractice. Recent comments made by Administration Official Peter Orszag suggesting immunity for some doctors who follow certain guidelines has renewed the debate.

In particular, physician groups and patients? rights groups have disagreed on the value of specific guidelines to practicing medicine. In one of the letters, Gibson Vance, President of the American Association for Justice, explains that the notion of specific guidelines may be attractive on its face, but it is completely impractical in reality. For example, when mammogram guidelines were created, doctors felt handcuffed by the fact that the standard may have suggested no test was needed?even though he or she personally felt one should have been given.

The focus around the entire debate needs to be refocused on reducing the thousands of costly medical mistakes each year, not merely providing immunity to certain caregivers.

Of course these evidence-based analyses should play a role in determining what is or is not malpractice, but the entire process of deducing proper care cannot be sublimated to those generic factors. For one thing, there will always be disagreement between practitioners regarding certain standards. Those standards themselves may change over time or be proven wrong. When a wrong diagnosis is made, strict adherence to those standards may then lead to even further complications.

Our Chicago medical malpractice lawyers at Levin & Perconti support the broad understanding that medical standards help in determining proper care, but we believe that those guidelines remain part of the process, not the entire process. Doctors? should not be given blanket immunities for a rigid set of actions regardless of the harm those actions cause their patient. The system must remain fluid and medical malpractice victims must keep their access to the justice system?allowing them the chance to share their story and allow a jury to provide rulings as intended.

Full post as published by Illinois Medical Malpractice Blog on October 30, 2010 (boomark / email).