Clinical Practice Guidelines as Legal Norms

Abstract

What would the impact be of clinical practice guidelines on malpractice litigation? Would the organizations developing and implementing such guidelines run any risk of being held liable? These are the two most obvious legal questions raised by the development and implementation of clinical practice guidelines, but there are many other potential areas of interaction. One could examine, for instance, the impact such guidelines would have on the criminal liability of physicians or on legal actions arising from a violation of the codes of professional ethics that have the force of law. One could also consider whether practice guidelines would constitute an illegal form of restraint of trade, as has been argued in the United States.' These issues cannot be covered in a short, introductory paper, but examination of the relation between practice guidelines and civil liability should suffice to illustrate the basic conclusion: the medical profession can strongly influence the content of the legal standard of care, but that standard is ultimately set by the courts or the legislator. Thus, the medical profession alone cannot determine the content of legal norms.