Monitoring Liability and Costs

Who should set medical standards — doctors or lawyers?

by Peter A. Corsale (Gallop, Johnson & Neuman, L.C.) & Michael Wong (Physician-Patient Alliance for Health & Safety)

Medical standards should be set by doctors.

The alternative is dangerous.  While medical journals and academia may wrestle with what constitutes the standard of care, at the end of a trial the average juror, who will have little if any medical training, will decide whether the defendant practitioner has met the standard of care.  Thus, any evidence that shows that a breach of a standard of care resulted in some detriment to the patient is powerful, no matter how “weak” it actually is.

As a result, practice and studies can greatly influence what that standard is or should be. A recent Anesthesia News article, “‘Herculean’ Study of Airway Complications Finds Room For Improvement” discussed the results of the Fourth National Audit Project of the Royal College of Anaesthetists and the Difficult Airway Society (NAP4).

This UK airway study found that up to 75% of the 184 serious airway complications reported could have been averted if better airway management practices were used. Moreover, the BBC in discussing this airway study reported that lack of intensive care equipment was “causing deaths” in UK intensive care wards. The BBC stated: “using a capnograph may avoid over 70% of breathing-related deaths on UK intensive care wards.”

How much will this report and BBC pronouncement affect medical practice standards here in the United States?

We asked Dr. Carin Hagberg (professor and chair of anesthesiology at the University of Texas Medical School at Houston, and executive director of the Society for Airway Management):

The key finding of the UK study was that 70% of airway-related deaths occurred in the ICU at least partly caused by failure to use capnography in ventilated patients. The researchers noted that increasing use of capnography in ICU patients is the single change with the greatest potential to prevent deaths such as those reported to NAP4.

 Perhaps we should follow suit with the Association of Anaesthetists of Great Britain and Ireland, which recently published a statement urging that continuous capnography be used in all patients whose airways are being maintained. .[1]

Following suit would not only improve patient safety, but adoption of capnography to monitor ventilation in real time would certainly be preferable to a trial lawyer, judge, and jury deciding whether a healthcare professional is legally liable.

Dr. David Crippen (Associate Professor of Critical Care Medicine, University of Pittsburgh Medical Center) explains the need for real time monitoring of adequacy of ventilation:

To prevent respiratory depression, patients need to be monitored in real time, and not just when caregivers periodically check on their patients. Capnography is the only way to assess adequacy of ventilation (not oxygenation) for patients on controlled mechanical ventilation. If patients on a ventilator become hypoxic for whatever reason, and the pCO2 stays constant, they do not necessarily become agitated (hypercarbia induced catecholamine release and agitation). They simply go to sleep. The pulseox will not alarm in hypercarbic or hypocarbic states in the face of normal oxygenation. Therefore, capnography is necessary to assess whether ventilation is proceeding normally in real time. It also assesses possible bronchospasm, thumbnail guesses of deadspace and of course, whether the patient has air entering the trachea after intubation. It gives a tremendous amount of useful information at a glance and also allows troubleshooting in real time.

To prove medical malpractice, the plaintiff must show that the defendant failed to meet the applicable medical standard of care; that the act or omission involved negligence; and that there was a causal connection between the act or omission and the plaintiff’s injury.  The standard of care is set not just by medical society guidelines, but also by what practitioners are doing and what research is showing.


[1] To access the guidelines, please click here.

One thought on “Who should set medical standards — doctors or lawyers?

  1. Jeanne M Lesniak

    It appears that the insurance companies have already set the standard. Whatever physicians recommend, the insurance company can either accept it or deny it. I would feel more comfortable with physicians setting standards and insurance companies abiding by those standards, taking into consideration individual patient needs/requirements.

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