72 Pages Posted: 24 Jan 2013 Last revised: 13 Feb 2013
Date Written: January 22, 2013
American medicine has long fought to control the standard of care that physicians are expected to provide to their patients. It has waged battles on two fronts: against internal disagreements within the profession over what constitutes proper care, and against attempts to delineate the standard of care by forces outside the profession, such as private health insurers, the government, and the judicial system. In the early 1990s, forces within American medicine mounted an unprecedented attack on both fronts, pushing for laws permitting designated professional medical associations to articulate “medical practice guidelines” that would define the standard of care, and more importantly, that would serve as “safe harbors” so that physicians who demonstrated that they had complied with the guidelines would be protected from malpractice liability. The 1990s initiative was a failure, but the safe harbors notion has once again resurfaced, buoyed by expectations that new “evidence-based” medical practice guidelines will be able to overcome the obstacles that prevented earlier success. This article begins by describing the historical power struggle waged by medicine over control of the standard of care. It then describes the safe harbors concept and its historical background. Next, the article critically analyzes the safe harbors approach and explains its scientific weaknesses. The article then places the safe harbors concept in the context of medicine’s historic power struggles. The article concludes by defining the appropriate role for practice guidelines in malpractice disputes.
Keywords: medical practice guidelines, standard of care, reasonable care, medical liability safe harbors, malpractice liability, malpractice litigation, medical licensing, evidence-based guidelines, comparative effectiveness, professional standards, American Medical Association, Institute of Medicine
JEL Classification: K13
Suggested Citation: Suggested Citation
Mehlman, Maxwell, Professional Power and the Standard of Care in Medicine (January 22, 2013). 44 Arizona State Law Journal 1165 (2012) ; Case Legal Studies Research Paper No. 2013-3. Available at SSRN: https://ssrn.com/abstract=2205485