Changing What Is Considered Customary Practice As Part Of Medical Malpractice Reform

When it comes to reforming medical malpractice law most ideas center on limiting a doctor’s liability when they are found to be at fault, requiring that all defendants be name within a certain amount of time prior to the lawsuit, or raising the standard of negligence. However, perhaps the issue of how guilt is determined needs to be addressed.

Generally malpractice laws are based on “customary practice.” Under this basis a doctor can be considered guilty of malpractice if he or she has failed to follow customary practice or proper standard of care. This causes doctors to look to their peers and mimic what they are doing. However, other doctors vary in their practice of medicine. Additionally, the most effective medical treatment or procedure may not be the one used most often.

There have been some states over the years that have changed their customary practice standard to base it on national medical practices as opposed to using local practices. Since 1977 the difference in the medical practices used in 16 states compared to the nation has decreased by 30 – 50 percent. It has been suggested that if malpractice law are standardized then there is a greater likelihood that medical practices would be standardized as well. This could bring the cost of medicine down without losing its effectiveness since the more expensive procedures are often not the most effective ones.

If there were to be national standards of practice those who implement the standards would need to make sure that they are based on good medicine as opposed to tradition. It has been proposed that if a doctor were to follow these guidelines they would be given “safe harbor” under medical malpractice laws. Basically, if a doctor is able to show that they followed the guidelines while treating a patient then the patient would not be able to sue for medical malpractice. On the other hand if the doctor did not follow them and the patient is harmed then the patient would have a basis to sue for medical malpractice.

This approach to reforming medical malpractice laws could have a significant impact on doctors’ behavior. It could also be a step towards improving health care while lowering its cost.

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.