Latest / Off the Chart: A Business of Medicine Podcast / S1 Ep64: The new standard for medical malpractice with Daniel G. Aaron, MD, JD
Transcript
- Speaker 1 00:00:00 This new statement does kind of pull courts in the direction of humans and medical evidence, and allow doctors to practice with a little bit more flexibility and to follow new studies as opposed to what other doctors are doing. Welcome to Off the chart: Speaker 2 00:00:25 A Business of Medicine podcast featuring lively and informative conversations with health care experts, opinion leaders and practicing physicians about the challenges facing doctors and medical practices. I'm your host, Austin Littrell. This episode features a conversation between myself and Dr. Daniel Aaron, an associate professor of law at the University of Utah. We're talking about how a new legal standard from the American Law Institute redefines medical malpractice, and what physicians need to know. Dr. Aaron, thank you so much for for joining me today. Speaker 1 00:01:00 Oh. Thanks, Austin. My pleasure. Speaker 2 00:01:02 So you recently co-authored a JAMA article about an important update to the legal standard for medical malpractice and the American Law Institute. And the piece you explain that this new standard moves away from the traditional focus on customary practice, and instead defines reasonable care as a skill and knowledge considered competent among similar clinicians in similar situations. Speaker 2 00:01:19 It also encourages courts to consider evidence based guidelines and puts greater emphasis on patient centered care. So really, just to start out just kind of with the big picture here. I mean, could you briefly explain what prompted the American Law Institute to revise the medical malpractice standard of care? Speaker 1 00:01:34 So give us a little bit of background on the restatements. When courts hear cases, they often turn to what's called a restatement of law. the the American Law Institute issues a restatement that lays out what the law is in a certain area, but also it can add in adjustments where it feels that the law could improve in particular respects. And so in tort law, which is kind of the main area where a medical malpractice case is heard, there is a restatement that dates to around the 1960s, and it hasn't been updated in a really long time. And it's been a long project for the American Law Institute to update that to aid judges and resolving a court and specifically medical malpractice cases. And so, in the process of trying to create the Third Restatement of Law, the American Law Institute realized that there was so much content with regard to medical malpractice that they actually had to remove it from the section that it was going to be included into and spin it off into its own section. Speaker 1 00:02:41 And, you know, there is a lot of literature on medical malpractice that kind of makes it unique and complex. And so thus we have borne the first ever restatement of medical malpractice law. And I should also say that the American Law Institute is kind of viewed as an expert institution, you know, akin to the American Medical Association or the National Academies of Science. That that kind of issues, standards, and, and recommendations within the law. Comparable to, say, the scientific recommendations of the National Academies of Sciences. So this is a pretty big deal. Speaker 2 00:03:16 Could you explain just a little bit about how the approach is fundamentally different from the traditional customary practice test? Speaker 1 00:03:22 Yes. So traditionally, when doctors were brought into court for a medical malpractice case, they were assessed based on custom. So the question is or the question was what do most doctors do? And that can actually be a little bit frustrating because doctors tend to like to follow the evidence. And evidence often evolves. And so, you know, there was at least some level of risk to, adjusting one's practice to new evidence in if other physicians were practicing in a different way. Speaker 1 00:03:56 The new standard, That implements something called reasonableness. Reasonableness is the idea that what you're doing should kind of be based on rationality and considering the benefits and risks, which is actually very similar to the idea of evidence based medicine. So essentially, the standard of reasonableness imports this idea of benefits and risk. That's an evidence based medicine and puts it into the law, which actually allows physicians to practice more in accordance with the evidence based on what's reasonable. And so that's a pretty significant change. So so for one, this allows doctors to follow the evidence a little bit more and not hew to what other doctors are doing. in addition, there were concerns about how custom was operating in medicine and how that was being enforced in medical malpractice. and this idea kind of the momentum behind, ill advised clinical practices. And also there was this idea of customary corruption. This is an idea coined by Arneson to law professors, who have have argued that companies that want to inculcate the use of their product and the medical profession can try to build up a custom for using that product, which then becomes enforced in medical malpractice law. Speaker 1 00:05:17 And we don't want to see this incentive to shape medical customs being enforced by medical malpractice, while we want to see medical malpractice while really being driven by evidence based practice, which is what this new statement operates a shift toward. Speaker 3 00:05:38 Say, Keith, this is all well and good, but what if someone is looking for more clinical information? Oh. Speaker 4 00:05:44 Then they want to check out our sister site, Patient Care Online, the leading clinical resource for primary care physicians. Again, that's patient care online. Com. Speaker 2 00:05:57 Yeah. So the statement emphasizes reasonable medical care grounded in patient interests. How might that reframing alter the way the physicians approach clinical decision making on a day to day basis? Speaker 1 00:06:08 The first thing I just want to say, which I should have said earlier, is that most doctors do not experience even a single penny of financial liability because of the serious protections that we have in law for physicians and their insurance policies. And so, by and large, almost all doctors never have to pay a single penny. The the physician who does have to pay a single penny is exceedingly rare. Speaker 1 00:06:34 So I just wanted to to kind of spell that one out. so this is going to sound a little bit repetitive, but this new statement does kind of pull quartz in the direction of human and medical evidence and allow doctors to practice with a little bit more flexibility and to follow new studies as opposed to what other doctors are doing. And in fact, the restatement explicitly acknowledges that courts can consider differences among groups of providers. So where you have new kind of ways of thinking about medicine coming about, then that's something the court can acknowledge and give credit to such that, you know, if 20% of doctors follow a particular practice, then that might be something that's actually legitimate, because you have a group and it's okay to have differences in the way medicine is practiced, as long as those differences are reasonable. so so that's that sound a little bit repetitive? the other thing I want to say is this change in standard, while important, is not earth shattering. There still is a recognition that custom is important. Speaker 1 00:07:42 And so, one should consider what other doctors are doing. You know, one shouldn't operate only in a vacuum in medicine. In fact, medicine is kind of a collective practice where we share evidence and come to conclusions about the best ways to practice. And so the community aspect and the idea of custom still has some relevance within the new restatement. And you can see that in how the new restatement uses the phrase regarded as competent. Right. So there's this idea that you do want to practice in a way not that you see as competent, but that the profession as a whole sees as competent. Speaker 2 00:08:19 Great. Yeah. So the new language explicitly invites course to look at evidence based clinical guidelines. What practical steps should physicians and health system leaders take to ensure the guidelines they rely on will stand up under this legal scrutiny? Speaker 1 00:08:31 So most guidelines that physicians organizations issue are going to likely be legitimate, like assuming that these are the mainstream medical organizations like the American Medical Association, the American Academy of Pediatrics, etc., etc.. Speaker 1 00:08:45 So in a sense, I think physicians should do what they generally do, which was due to their organization's guidelines. I think if you know, if a physician is thinking about following, kind of illegitimate guidelines or ones that don't really have purchase that aren't issued by physicians in their field that are kind of issued by like a non physician group. You know, I think those are the types of guidelines that wouldn't really provide much refuge from liability. And I think that's for good reason. The restatement doesn't want to give credence to guidelines that aren't evidence based or aren't legitimate. That could fuel various efforts to, say, influence guidelines or to influence the practice of medicine by creating fictitious guidelines. So. So courts will ensure that guidelines are legitimate and evidence based and reputable before they simply fall to them. As a you know, they're not going to reflexively follow unsupported guidelines. So for the most part, I think doctors can just rely on the guidelines that they normally would rely on that that are evidence based and supported. Speaker 2 00:09:53 Do you could you share an example of where, you know, kind of following what everyone does could still be deemed negligent under the new framework? Speaker 1 00:10:00 So if there is a practice that everyone does, it would remain very hard to be held liable for that because you would have to be regarded as not competent under the standard. And most likely, if everybody is doing something, then it's regarded as competent to do that. There are practices. There are customary practices that physicians sometimes engage in that are not evidence based. And that may be performed by, say, the majority of physicians. But even then, you're going to have a large number of physicians who disagree with that practice and who who may not regard that as competent. Right. So if if literally everybody is doing the thing, I think it's very hard to find liability. But if you do have a contingent of, of doctors that, that think that something is unreasonable, then there there would be more of a prospect of liability. So, so for unanimous practices, I think the odds of liability are low. Speaker 1 00:10:58 I also want to emphasize that, the standard explains that in the commentary that there the standard operates as a floor of minimum competence. Doctors don't have to be average. They can even be below average and still pass muster. The key with medical malpractice is to ensure that that physicians operate above a minimum level of competence in their practice of medicine. Speaker 2 00:11:26 So many physicians cite a fear of lawsuits as a driver of unnecessary tests or referrals. How do you expect a revised standard to affect defensive medicine behaviors. Speaker 1 00:11:36 Even before the standard? Physicians, as I noted, have been almost completely shielded from financial liability for medical malpractice. It's exceedingly it's exceedingly rare for physicians to have to pay a single penny. The average physician receives about 0.35. Paid medical malpractice claims over the course of their career. And again, these are paid by the insurance company. So already I think already physicians did not have a lot to be concerned about with medical malpractice. Of course, physicians themselves say that medical malpractice is important and it does affect clinical decisions sometimes. Speaker 1 00:12:16 And so there is that subjective reality of that of physicians being concerned. And so we think that we, the authors of the paper, think that this will aid in alleviating physician anxiety because it allows them to practice more in accordance with the evidence, and they don't need to follow what everybody else is, what everybody else does as a matter of adhering to custom. And so we do think that this standard helps shift medical malpractice more toward the evidence based medicine that physicians are already ideally practicing. Speaker 4 00:12:52 Oh, you say you're a practice leader or administrator. We've got just the thing. Our sister site, Physicians Practice. Com your one stop shop for all the expert tips and tricks that will get your practice really humming again. That's physician's practice. Speaker 2 00:13:10 Yeah. So because malpractice law is largely state based, I mean, uptake will vary. what indicators should physicians watch for in legislation? Court opinions ensure policies that their own jurisdiction is adopting elements of the new standard. Speaker 1 00:13:23 So physicians can follow legislative developments, bills that are introduced and passed in their state and they can look to court cases. Speaker 1 00:13:33 But also, I don't think that they need to do that because we have this kind of uniform standard that's going to take some time to percolate. And and already again, they are protected from liability. This these standards will likely increasingly protect them when they're following evidence based Space medicine. And so I don't think that they need to follow the latest and greatest in medical malpractice law. If there are big developments, then likely their hospital or lawyers in their states will kind of spread the word about how the standard is changing, and then they can be aware of that. But, I don't think that physicians should be overly worried about following these developments. That said, I do think that there are two, two kinds of types of actions that physicians can take if they're really interested in these issues. The first is they can try to drive institutional change toward evidence based care, which involves communicating clearly and honestly with patients, including about medical errors. And this is opposed to kind of a more traditional, a more traditional deny and defend approach. Speaker 1 00:14:44 So communicating and apologizing can reduce medical liability, reduce the chance of suit and facilitate discussions that improve the quality of care. And so often this kind of approach is seen is labeled as a communication and resolution program. And this type of program can really just bring a lot of benefits to patient patient care and to, patients feeling like they're, being treated fairly and communicated to honestly. So, and, and I think that this, this type of institutional approach is particularly important because with the standard trying to emphasize evidence based medicine, this is an opportunity to bring medical practice fully in line with with evidence based practice and with medical malpractice cases, so that all of this together is aligned with really what's best for patients. The second thing is, if physicians are really interested in medical malpractice law and policy, they could follow this and maybe even participate in And discussions through their state court or through their state legislature, with the goal of ensuring that care is compassionate, evidence based and patient centered. Speaker 2 00:16:00 Right. Yeah. So for busy primary care physicians that are listening today, what actions do you recommend for them to stay informed about the evolving legal landscape? Speaker 1 00:16:09 Physicians can read our article in Jama about the new medical malpractice standard. Speaker 1 00:16:14 That should give enough of an overview of kind of the trend that's occurring in medical malpractice law. I think physicians should, should worry less about medical malpractice cases, given, the standard, but also just the long legacy of generally physicians being protected through insurance and through, kind of procedural requirements to bring medical malpractice cases and other forms of limits. on, on bringing these cases. And so I think physicians are actually in a better position Then there sometimes anxiety would suggest. And so I think it's important for physicians to remember that and not to become preoccupied with these legal changes, and instead to view them as a moment of empowerment for evidence based medicine. Speaker 2 00:17:03 Great. Well, those are all the questions that I have for you. Is there anything that we didn't discuss that's important for physicians to know about this topic? Speaker 1 00:17:10 I'll just note that while this is a significant change, it's not earth shattering. It's a practical, incremental improvement to improve medical care and the medical malpractice cases that follow that sometimes follow from from this care. Speaker 1 00:17:25 And it's wonderful to see that the American Law Institute is recognizing the importance of evidence based medicine and, and shaping the law around that importance value. Speaker 2 00:17:41 All right. Well, Dr. Aaron, thank you so much again for taking the time today. Speaker 1 00:17:45 My pleasure. Austin. Thank you. Speaker 2 00:17:54 Once again, that was a conversation between myself, medical economics assistant editor Austin Littrell, and Dr. Daniel Aaron, an associate professor of law at the University of Utah. On behalf of the whole medical economics and physicians practice teams, I'd like to thank you for listening to the show and ask that you please subscribe on Apple Podcasts, Spotify, or wherever you get your podcasts so you don't miss the next episode. Also, if you'd like the best stories of medical economics and physician practice, publish delivered straight to your email six days of the week. Subscribe to our newsletter at Medical Economics and Physicians Practice. Com oh, and be sure to check out Medical Economics Pulse, a quick hitting news podcast that offers concise updates on the most important developments affecting your practice, your bottom line, and the broader health care landscape delivered by the editorial team at Medical Economics. Speaker 2 00:18:35 Off the chart, a business and medicine podcast is executive produced by Chris Mazzolini and Keith Reynolds and produced by Austin Littrell. Medical economics, Physicians Practice and Patient Care Online are all members of the MJH Life Sciences family. Thank you.