Case Study

We all know this is the most dreaded question your colleague can ask — “Remember that patient you saw yesterday?” It turns out the patient you saw with atypical chest pain came back with aortic dissection. Your mind races: “Did I check the pulses? Did I ask if the pain was migratory or tearing? Did I address the blood pressure and pulse pressure?”

This time, the dissection was caught, and the patient is likely to survive. But for the next few months, you’ll second guess yourself and wish you’d done a more exhaustive history and physical exam and then documented your medical decision-making (MDM) more thoroughly.

Executive Summary

• Recent trends suggest evidence-based medicine (EBM) may start playing an increasing role in medical malpractice litigation.
• Robust use of EBM will make your care more defensible in the setting of an unpredictable bad outcome.
  • Identify and document specific history and physical exam findings (both pertinent negatives and positives) to improve your care and embed evidence in the chart.
  • Include evidence-based clinical tools and clinical practice guidelines (CPGs) in your MDM.

Background

The outcome of a medical malpractice claim hinges primarily on whether the standard of care was met. However, unlike other forms of tort litigation, which rely on published standards and metrics, the standard of care in medical malpractice is usually defined as “customary care” that is defined subjectively as common practice. Competing experts render their definition of “customary care” and the jury decides which version is more compelling.

The customary care standard is susceptible to external factors that can produce highly variable results depending on context^.1,2  Recent developments in the legal literature and in court proceedings suggest the landscape may slowly be changing.

Statement from the American Law Institute (ALI)

While the recent consensus statement from the ALI does not radically alter the landscape, it creates a potential for use of evidence-based guidelines in defense.3^,4 Care that follows authoritative evidence-based guidelines is “sufficient to support, though not compel, a finding that the provider did not breach the standard of care.”⁵ Importantly, not following an authoritative evidence-based guideline does not itself establish a breach of the standard of care. Either way, the position of authoritative evidence-based guidelines has been elevated in status, potentially making standard of care determinations more reliable.

Marsillo v. Dunnick

This case involved the care of a 13-year-old rattlesnake bite victim in Texas. The physician followed a hospital guideline that closely follows consensus panel statements from the American College of Toxicology and the crotalidae polyvalent immune Fab (CroFab®) website.^6,7,8 Plaintiff counsel, relying on the testimony of a single expert with scant supporting literature, asserted that CroFab should have been given immediately instead of waiting until the patient met criteria for treatment. The defense relied on the expert panel’s recommendation to argue that no “willful and wanton” standard of care occurred. The Texas Supreme Court found for the defense, dismissing the plaintiff expert’s testimony as “conclusory” indicating that it lacked supporting evidence. While this case has binding precedence on evidence-based guidelines only in Texas, it will likely be influential in other states.