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Medical Malpractice Case Evaluation and Regional Disparities in the Standard of Care

The term “standard of care” is one that is used liberally in the legal profession in respect to accepted and acceptable physician practice. When I am asked to review medical cases, the goal is to look for deviations from this standard that caused preventable harm to the patient. The clinical problem is that the term “standard of care” is not used medically.

During my training in medical school and residency, topics were not introduced according to their compliance with a set standard. They were introduced as what was the next best step in determining what disease I was dealing with and the most appropriate treatment for that patient and his/her disease. This patient centric approach often leads to significant lassitude in determining what can qualify as appropriate treatment. In fact, this nebulous standard is defined only as what another qualified, reasonable physician would do if found in the same situation.

Many cases are horrible, obvious deviations in the standard of care. It is never acceptable to leave unintended foreign objects in the body after surgery. Hospital administrators, operating room personnel and surgeons have gone to great lengths to put practices in place to help prevent its occurrence. Mistakes slip through. Unfortunately it still happens. Anyone could identify these tragic errors.

Other situations may not be as obvious to an untrained individual. For example, I would consider it unacceptable to attempt to suture closed the abdominal incision immediately after the operation in a patient who presented with a ruptured colon and fecal contamination. This would greatly increase the risk of something called compartment syndrome. In the surgical world, this is a common knowledge and common practice; but I wouldn’t expect the average attorney to know about this standard.

What about when issues are even less obvious? Medical practice is a constantly evolving body of information. Opinions on acceptable treatment vary between specialties. These standards are even more plastic among physicians in the same specialty in different regions of the country and different practicing environments. Rural versus big city. Private practice versus academic teaching centers. Each place I have participated in clinical medicine has done things just a little bit different.

With the current health care debate there has been much discussion about this subject. Different parts of the country spend varying amounts of health care dollars on diagnosis and treatment of disease. Tests, procedures and treatments cost money, so it is fair to say that disparities in money spent coincide with disparities in standard practice protocols.

Author Atul Gawande noted this disparity in an article in the New Yorker this past summer. He observed that McAllen, Texas had the second most expensive health care in the United States behind Miami, Florida. Discussion of the reasons for and consequences of this extreme amount of spending could cover blog posts for the next month. My point is, what is the accepted “standard of care” in McAllen may appear as overkill to someone in Seattle. A workup to arrive at a diagnosis for onset of new symptoms in a patient may be approached differently, neither one differing from the standard of care. One physician may pursue aggressive diagnostics while another practices watchful waiting. In many situations both practices are acceptable and decisions are made between doctor and patient. What happens when the patient, whose physician practiced watchful waiting, is eventually found to have a disease that could have been detected at an earlier point in time with more aggressive testing? Disaster strikes, complications ensue and the patient has a bad outcome. Often there is no definitive approach that is absolutely correct according to a set standard.

For quite some time now, individual states have adopted national standard of care laws that legally eliminate the use of state or region specific standards. Although this intent is good on paper, the issue of practical application of the law has not been solved. We can say that cases should only be evaluated and tried based on national standards, but the problem is, no official national standard exists for most issues and regional disparities still exist. A definitive solution to the problem is yet to be identified. Minneapolis medical malpractice attorney can assist you if you are in such circumstance.

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