Clinical paths: No smoking gun for malpractice cases
Clinical paths: No smoking gun for malpractice cases
Help clinicians get over path anxiety
By Patrice Spath, ART
Consultant in Health Care Quality and Resource Management
Forest Grove, OR
(Editor's note: In the first of two columns on legal issues surrounding clinical paths, Ms. Spath tackles many frequently asked questions about the legal risks. In next month's column she will examine important strategies for reducing path liability concerns. )
The number of hospitals using clinical paths has risen considerably in the past three years. The percentage of all U.S. hospitals developing and using clinical paths is estimated to be between 60 and 80%.1,2 Yet, clinicians continue to voice concerns that paths unnecessarily add to their liability fears. Now that paths have a track record in today's hospitals, many of the commonly expressed malpractice anxieties can be countered. Answered below are some of the common questions asked about paths and liability issues:
Does the clinical pathway create a 'standard of care'?
Maybe. Case law in each state specifies how a standard of care is defined and substantiated. In most states, guidelines drafted by professional organizations, quality assurance programs, and hospitals are admissible in court as to the question of whether the standard of care was met. Thus, clinical paths may be used in defense of a caregiver, or as proof of negligence, depending on whether the caregiver complied with the path. Remember, with or without paths, clinicians are expected to meet the community standard of care or justify their reason for varying from the standard.
Will paths be used against caregivers in a court of law?
Maybe. The defense attorney and/or the plaintiff's attorney may attempt to use your paths as evidence in court. You cannot guarantee they will be protected from discovery by the courts. Discovery involves the pretrial activities of attorneys to determine what evidence the opposing side will present if the case comes to trial. In the case of clinical paths, if they are protected from discovery it means that attorneys are not allowed to see them, even if they do not plan to admit them as evidence.
In some states, paths may be viewed as documents developed under the medical staff peer review function and, because of this, paths may be protected for discovery. In other states, paths may not hold similar protection. However, remember that paths are just another piece of evidence about what should have been done, given the clinical circumstances. The value and credibility of that evidence is going to depend on what the jury chooses to believe when the case is presented.
Studies have shown that guidelines are used more often as a sword--and that is not a surprise. Cases where a good guideline was followed never got to court. A judge's decision to accept or reject a particular guideline as evidence of the standard of care may be influenced by who developed it.
In a recent case, the Colorado Court of Appeals ruled that risk management guidelines developed by Greenwood Village, CO-based COPIC -- the Colorado Medical Association-sponsored professional liability insurer -- were properly excluded from evidence by a lower court. The trial court determined that the guidelines were not relevant "because they were promulgated by a private insurance company and did not reflect generally recognized standard of care within the medical professional."3 Systematically developed guidelines from groups such as the Washington, DC-based American College of Obstetricians and Gynecologists, the Dallas-based American Association of Respiratory Therapy, or the Rockville, MD-base Agency for Health Care Policy and Research, may be admissible as evidence.
If caregivers DON'T follow the path, will they be held liable?
Not necessarily. If the path recommendation is based on a guideline derived from sound medical evidence, then caregivers better have a reason that they can justify. Even if the hospital does not have a path for a particular type of patient, caregivers better document their rationale for deviating from the community standard of care.
However, other evidence may be introduced to prove negligence. "Doctors will come up with a million reasons why the standard didn't apply to their particular patients," says Harvey Wachsman, MD, JD head of the (Great Neck, NY-based) American Board of Professional Liability Attorneys. However, he adds that most cases "don't rise and fall on standards of care -- they rest on proximate cause." In other words, it is usually pretty clear when the physician has deviated from the standard; the hard part is showing that this contributed to illness, injury, or death.4
What if caregivers DO follow the path, will they be protected from liability?
Not necessarily. Malpractice is the failure to exercise that degree of care as is used by reasonably careful health care professionals of like qualifications in the same or similar circumstances. The failure to meet this acceptable standard of care, when causing the patient injury, may allow recovery of damages. If following the path is not what a prudent caregiver would have done in a similar situation, then they may be held liable for professional negligence.
Won't paths hurt us more than they'll help us?
No. In the jury's eyes, a pathway's biggest advantage may lie in the clarity it brings to an otherwise complex, paper-jammed and jargon-filled medical record, says Christopher Nolin, JD, a health care attorney with the Boston-based law firm Warner and Stackpole who has written on case management topics. Confusion about the patient record and its content can lead the jury to rely too heavily on their sympathy toward the plaintiff. Nothing is more damaging to the defendant's case than the ability of the plaintiff to create the impression in the jury's mind that the providers simply weren't paying attention to the patient.5
Paths help make patient care more predictable, reducing adverse events caused by commonplace errors. In a review of patients at 12 hospitals, the Santa Monica, CA-based RAND Corporation found that 27% of the deaths due to heart attack, stroke, and pneumonia were caused by "commonplace errors in diagnosis and treatment."6 Examples of common errors for heart attack patients included:
* failure to give nitroglycerin or morphine;
* failure to give multiple doses of drugs for patients with multiple episodes of chest pain;
* insufficient attention to body fluid management;
* inadequate control of arrhythmias.
To be successful in a clinical pathway initiative, quality management professionals must respond to clinicians' fears about paths being used against them in a court of law. For clinical paths to influence legal decision making, courts have to accept clinical paths as important evidence of the standard of care.
Medical malpractice is conventionally described as a deviation from the acceptable medical standard of care that causes injury to a patient for whom a clinician has a duty of care. The definition of accepted standard of care may be supplied by case law, state statute, or regulation. Traditional case law allows for some divergence from common practice when that divergence is backed by a "respectable minority of professionals." Having a path for a particular group of patients does not change caregivers' legal duty to their patients.
For the most part, the legal standard of care is established by expert caregiver testimony based on the expert's opinion. Subject to some limitations, experts may also cite published standards or textbooks (in legal jargon, "learned treatises"). Some states have given the courts explicit discretion to admit such standards without accompanying expert testimony, apparently to make it easier for plaintiffs to use their sources without running afoul of prohibitions against hearsay evidence. However, paths are usually not admissible because of their protection under the state's peer review statutes.
References
1. Roman, KM. Practice policies: potential implications for malpractice litigation. Journal of Healthcare Risk Management Summer 1995; Vol. 15.
2. Andersen Consulting. Clinical Path Survey: A Study of Clinical Path Trends in Healthcare 1995.
3. Practice guidelines and clinical pathways: Swords or shields in malpractice litigation? Hospital Risk Control Update June 1995.
4. Wallen E. Clinical practice guidelines employed against doctors in malpractice suits. Physicians' Financial News Jan. 15, 1995; p. 2.
5. Nolin, C. An analysis of the use and effect of CareMap tools in medical malpractice litigation 1994. Center for Case Management, South Natick, MA.
6. Common errors blamed in 27% of patient deaths, Modern Healthcare, Oct. 7, 1988, p. 11. *
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