Standards of Care
The Legal Concept
The standard of care is a legal concept describing the duty that physician-endoscopists must fulfill in their care of a patient. The endoscopist’s legal duty is to practice within the reasonable standard of care. A failure to practice within the standard constitutes a "breach of duty," which is one the of the four elements of proof that a plaintiff must satisfy to win a malpractice claim. Indeed, the standard of care is a central issue in medical malpractice litigation and in malpractice risk management. Practicing within the standard is the endoscopist's ultimate legal defense. This section considers this legal concept from the point of view of the practicing endoscopist, providing a framework within which the endoscopist may better understand how the standard reflects clinical practice, and how it evolves with clinical practices over time.
The basic idea of a standard of care can be counterintuitive for physicians who by nature are innovative, highly educated, and taught to utilize an extensive scientific literature to make complex individualized decisions that are based on limited available data.
The simple notion of a readily identifiable standard of care emphasizes a conflict between the realities of actual medical practice and the unrealistic expectations of our legal system. The courts seem to expect that physicians have well-delineated and scientifically derived standards which are readily accessible and individually applicable to the myriad of clinical problems we face. The reality is that while professional organizations such as the ASGE have articulated many useful guidelines of practice that may apply to specific well-defined clinical situations, the clinician is frequently faced with actual clinical problems for which there is no pertinent readily available information defining an accepted practice standard.
From a legal perspective, the court determines the standard of care and whether a physician has violated it, almost always after hearing expert testimony. The legal standard of care is thus defined after the fact in the courtroom, not in the medical literature, not in a clinical conference among learned colleagues, and not by a group of experts at an ASGE committee meeting. The process the courts use in defining a legal standard of care is not intended to be helpful in guiding physicians through our daily medical decision-making processes. The courts render findings only in those cases in which a plaintiff litigates against a physician in a medical malpractice action. Only a small minority of malpractice claims or suits actually progress to trial. Those that do tend to result in narrowly drawn case-specific findings that have limited applicability to general questions that may arise frequently in clinical practice.
Despite the legal constructs considered above, the standard of does bear a reasonable relationship to what we as physician-endoscopists recognize as good care. The courts traditionally look primarily to professional custom as the benchmark in the definition of the legal standard of care. The standard of care in gastrointestinal endoscopy can be fairly described as the practice that is customary among competent gastroenterologists who are in good professional standing and are practicing with reasonable diligence. The standard of care is not defined by optimal or "best" practices as viewed from either an individual or social cost-benefit perspective. The courts do not expect every endoscopist to practice with a level of knowledge and skill exhibited only by a few noted experts in the field. In theory, practicing with average diligence and skill exceeds the standard of care, as otherwise half of those practicing in a given field would be practicing negligently.
Just as customary medical practice evolves over time, so does the standard of care. The introduction of a new procedure or treatment will not immediately cause a change in the standard, but as the procedure or treatment becomes widely adopted, it may eventually lead to a new standard.
Majority and Minority Standards
Often, more than one standard of care may be applicable (such as when there are multiple accepted methods for evaluating or treating a problem). Practicing the most popular, or “majority,” standard is the most defensible course from a liability perspective. If a physician chooses an accepted but less popular approach (thus conforming to a “minority” standard), the standard of care may still be met, but specific documentation specifying the reasons for such an approach should be included in the medical record.
Guidelines (also called practice parameters) developed by specialty societies, federal agencies, and managed care organizations codify commonly held beliefs and customs, therefore serving as important evidence of the standard of care. While the practicing endoscopist will generally not find help from the courts to guide his or her medical decision-making, professional guidelines are widely available and provide clear consensus statements describing the professional custom that forms the actual basis for the legal standard of care. The weight of a guideline in the court’s view will reflect the sponsoring organization’s expertise and prestige, the nature and purpose of the parameter, conflicting statements by other authorities, and the direct applicability of the parameter to the case under consideration.
Within the realm of managed care, physicians are increasingly confronted with guidelines for clinical practice that primarily reflect the need to limit the costs of care. Parameters focusing principally on cost constraint provide little defense to a physician being judged according to a standard of care defined primarily by traditional patient care customs. Physicians complying with such cost-containment parameters (until a corresponding shift in the customary standard of care follows) bear the risks of liability from any resulting injuries. Courts have been reluctant to hold that cost constraints may be taken into account in determining the extent of the physician duty.
It is logical to assume that the development and promulgation of clinical guidelines reduces malpractice risk by helping clinicians understand in relatively unambiguous terms what their colleagues recognize to be good care. Perhaps surprisingly, recent evidence shows that practice guidelines are more likely to be used in malpractice litigation by the plaintiff, as evidence that the defendant failed to meet the standard of care, than as a tool of the defense. This is not really a paradox, because well written reasonable guidelines which are easily accessible and convenient for the clinician to use will be widely followed. A plaintiff's attorney faces a difficult challenge in proving a malpractice case against a physician who has adhered to an authoritative and respected guideline. This leads to a reduced exposure to litigation for those adhering to the guideline. Conversely, it is much more difficult to defend a physician who has violated an explicit guideline.
From a risk management viewpoint, endoscopists must be familiar with pertinent published guidelines and parameters and should clearly document their reasons for deviating from an established guideline. Keeping track of evolving guidelines has been difficult in the past, though the task has recently become much less onerous. The guidelines of the ASGE and other endoscopy and gastroenterology societies are now available online through the society’s web sites and through a federally sponsored web-based clearinghouse (see appendix). The ASGE's Policy and Procedure Manual for Gastrointestinal Endoscopy: Guidelines for Training and Practice is a frequently updated loose-leaf binder currently containing 83 training guidelines, practice guidelines, technology assessment reports, position statements and miscellaneous publications that every endoscopist should keep handy for ready reference. This collection of material, more than any other single document, best describes the standard of care of the practice of gastrointestinal endoscopy in the United States. Even a cursory review of the table of contents of this excellent document serves as a sobering review of the breadth of physician duty in the provision of endoscopic care, and thus, the breadth of the standard of care for gastrointestinal endoscopy.
- Richards EP, Rathbun KC. Medical Care Law. Gaithersburg, Maryland; Aspen Publishers; 1999.
Electronic Online Sources for Practice Parameters:
The preceding information is intended only to provide general information and not as a definitive basis for diagnosis or treatment in any particular case. It is very important that you consult your doctor about your specific condition.