When Defensive Medicine Hurts

Malpractice cases are driven by whether or not a physician acted appropriately when handling a patient’s healthcare needs. The question then becomes, who decides what is appropriate and how is this determined legally when a patient is injured?

The standard of care is the ruling guideline used by both the prosecution and defense teams when evaluating a physician’s medical performance. “Defensive medicine” is an argument used only by the defense team arguing on behalf of a physician under scrutiny. 

This argument is made by claiming further action for a patient would have been beyond the standard of care. Both terms are important to malpractice cases, yet the only question that truly matters is whether the treating physician was able to meet the criteria widely accepted by the medical community as the standard of care.

It is important to understand the difference between defensive medicine and the standard of care as it relates to a patient’s case. 

Considering the Standard of Care

The standard of care is a set of medical guidelines determined by specialist organizations for the treatment of a given disease or condition. It outlines the standard diagnostic and treatment process a physician should follow for specific symptoms or illnesses.

These guidelines can be developed over time or by the result of clinical findings and are then collated by the National Guideline Clearinghouse, helping physicians nationwide to stay current on the accepted standard, although they do not define the standard of care in a legal sense and merely act as a reference.

Has the Standard of Care Been Met?

Whether a standard of care was met or not will be determined, at least in part, by the resources available to the physician and medical team involved in the care of a patient.

For example, an urban, state-of-the-art stroke center will have more technology and treatment options available than a rural clinic for an emergent patient suffering a stroke. A physician practicing in a rural area will not necessarily be held liable for not having access to the latest treatments.

However, a physician may fail to meet the standard of care by not referring a non-emergent patient to the appropriate specialist or facility.

Legal Definition

When used in a medical malpractice case, the standard of care is heavily researched by both legal teams and validated by the testimony of expert witnesses. While both the patient’s and the physician’s attorneys will highlight clinical practice guidelines, the guidelines alone do not determine whether the defendant met the standard of care.

The patient’s attorneys want to show how the physician violated the accepted standard and prove negligence. On the other hand, the physician’s attorneys want to prove the physician’s actions were indeed aligned with the standard of care.

Unfortunately, the physician doesn’t have to outperform the standard of care to be free of negligence; their defense must only prove they have met it. 

Defensive medicine

“Defensive medicine,” then, is an argument used by the defense to qualify a physician’s actions, or lack thereof, and clear them of blame.

The impact of defensive medicine is often misrepresented. The purported practice of administering care to a patient with the priority of preventing legal action, as opposed to thoroughly treating the patient, is grossly overestimated. It differs from the standard of care in that it is only used in an attempt to absolve a physician of malpractice or to highlight the increasing cost of healthcare. An expert witness would speak to this argument when communicating the standard of care.

Perhaps ironically, the defensive medicine argument is most commonly used when it is clear further testing would have caught or prevented the injury or death of a patient. It is used to argue that a physician was not negligent, regardless of an unnecessary negative outcome for a patient.

What does this mean for a client’s case?

While the defensive medicine argument is a common one, the determinant factor in these cases is, in fact, the standard of care, which asks whether the physician followed all of the expected practices and procedures necessary to diagnose and treat a patient successfully within their ability.

Because the standard of care, within legal proceedings, is validated by the testimony of expert witnesses, it is important to select an attorney with strong relationships in the medical community. Finding the right expert witness can be difficult; having an attorney who is knowledgeable in the field of medicine will go a long way in determining the outcome of the case.  

How Can an Expert Help?

Miller & Wagner is especially known for their success in spinal, brain, and birth injury malpractice cases, but have a wide array of experience with malpractice cases in general, having settled more cases in Oregon than any other firm. 

If you believe that your client may benefit from having an expert medical malpractice attorney, contact us for a free consultation. 

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