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A Medical Malpractice Plaintiff’s Best Friend: The Doctor/Hospital’s Own Clinical Practice Guidelines

No matter the jurisdiction, most jurors who are seated to hear a medical malpractice case/trial carry with them some inherent biases. In fact, it has been our experience that many jurors and inclined to give doctors a “pass” in certain circumstances because the doctor was trying to help the patient, and certainly not trying to deliberately hurt the patient. Moreover, many jurors have family and friends who are in the health care industry and thus they are naturally biased in favor of those individuals, no doubt after hearing the “horror” stories of allegedly unfounded medical malpractice claims. As a result, many jurors will actually scrutinize the Plaintiff’s case for any reason that they can find to blame the Plaintiff for the injury or adverse result. These inherent biases can often be difficult to overcome in a week or two-week trial. One way to combat these biases is to use the defendant doctor or defendant hospital’s own policies and guidelines against them.

The majority of hospitals and/or physicians in today’s health care industry have developed clinical practice guidelines for how to treat certain conditions. These guidelines give recommendations about examinations to perform when confronted with certain signs and symptoms, certain tests to perform, certain medications a patient should receive and the timeframe within which all of these things should occur so as to provide to the best care to a patient and/or rule out potentially life-threatening conditions. For example, when a patient comes into a hospital complaining of a sudden onset of chest pain, most hospitals follow a cardiovascular guideline, taking steps to rule out the potentially life-threatening conditions like a heart attack, pulmonary embolism (blood clot to lung) and an aortic dissection. Such steps include performing an EKG, ordering a CT scan of the Chest, drawing blood to perform serial laboratory studies to look at certain markers. In short, these guidelines are adopted by hospitals and health care providers to try and prevent common errors. The guidelines are premised upon the belief that health care providers are human and injuries are inevitable without checklists and systems in place to prevent the same.

During the discovery period of any medical negligence case against a doctor or hospital, we always inquire whether any applicable clinical practice guidelines exist with respect to the care and treatment of our clients. Whether the case deals with alleged negligence against an emergency room physician, a consulting specialist, a radiologist or a nurse, guidelines typically exist.

In some instances, the guidelines are actually not generated by the health care provider or hospital itself, but instead, generated by the professional organization that provides certification and/or licensure for these health care providers. For example, many cardiologists are members of the American College of Cardiology. That entity routinely publishes written guidelines on how to treat patients with certain conditions. These kinds of guidelines are equally as effective. If we, as the attorneys for the injured party, can show the defendant doctor that he/she did not follow a guideline of his/her institution or the guideline published by an professional association that they are part of, the doctor often time has difficulty explaining why he/she chose not to follow something that was clearly designed to prevent errors and/or, even worse, was unfamiliar with the guidelines as some physicians are. It is these two latter situations where we believe we are often able to overcome the jury’s preconceived biases against our clients and demonstrate to them that the doctor’s care was negligent.

If you or a loved one have been the victim of medical malpractice, call our law firm at 410-385-2225 for a free consultation.