Standard-of-care testimony: best practices or reasonable care?

The standard of care is a mixed question of law and fact in which the factfinder is asked to determine what society is entitled to expect of a physician acting under certain specific circumstances. States frame this determination through case law and statutes. The precise definition of the standard of care varies from one state to another. The exact language is applied to case-specific facts, to determine whether the physician’s treatment of the patient was negligent. The standard of care in malpractice cases is determined by the factfinder based on expert testimony, practice guidelines, the psychiatric literature, hospital policies and procedures, state and federal regulations, and other relevant sources. Managed care protocols and utilization review procedures are not necessarily authoritative. Practice guidelines should be applied with caution to the highly specific fact patterns of malpractice cases. Practice guidelines evolve and change, driven by new developments in clinical practice and science. Studies find that no more than 90 percent of practice guidelines remain current after 3.6 years. After 5.8 years, half of the practice guidelines are outdated. Practice guidelines set forth practice parameters that may or may not apply to a fact-specific case in litigation. Therefore, the sponsoring professional organizations issue disclaimers that the practice guidelines may not represent the standard of care. Moreover, there is considerable lag time, sometimes years, before current research and practice guidelines find their way into clinical practice. The standard of care is not the same as the quality of care. Quality of care encompasses the adequacy of the total care that patients receive from health care professionals and providers, including third-party payers. Quality of care also depends on the patient’s health care decisions and the allocation and availability of psychiatric services. The quality of care provided by the clinician may be below, equal to, or even above the acceptable standard of care. Psychiatrists who exercise the “skill and care ordinarily employed” by the “average psychiatrist” in the same or similar circumstances will not be found liable for any resultant injury, unless the jury errs or a judicial standard of care is imposed. Mistakes do not constitute malpractice, if the standard of care is not breached. The “skill and care ordinarily employed” standard, however, is changing. Generally, tort law has permitted physicians to set their own standard of care—for example, the practice of the “average physician.” Physicians have needed only to conform their provisions of care to the customs of their peers. Defendants in ordinary tort claims, however, are required to use reasonable care under the same or similar circumstances. An increasing number of states have rejected the “medical custom” standard by adopting the “reasonable, prudent physician” standard. The latter standard exceeds the statistical measure of the “average psychiatrist.” Under the “reasonable, prudent” standard, even if 99 of 100 psychiatrists do not adequately perform and document suicide risk assessments, such omissions would be considered negligent practices that could harm patients at risk for suicide. Courts have held that negligence cannot be excused just because other physicians practice similarly. More is required. Actual practice must meet a reasonable, prudent standard of care. Dr. Simon is Clinical Professor of Psychiatry, and Director, Program in Psychiatry and Law, Georgetown University School of Medicine, Washington, DC, and Chairman, Department of Psychiatry, Suburban Hospital, Bethesda, MD. Address correspondence to: Robert I. Simon, MD, 8008 Horseshoe Lane, Potomac, MD 20854-3831.