Snyder v. American Association of Blood Banks: a re-examination of liability for medical practice guideline promulgators.

Medical practice guidelines are playing an increasingly important role in both the medical and the legal context. As tools for the health practitioner, it is thought that medical practice guidelines may contribute to an increase in the quality of patient care and cost-effectiveness. In the legal setting, guidelines may improve the functioning of the medical malpractice system by creating more rational, predictable standards of care. The development and promulgation of medical practice guidelines, while increasing, are still evolving. A number of concerns, especially in the areas of physician autonomy, physician control, and ethics, as well as efficacy, need to be resolved. The use of such guidelines as the legal standard of care in malpractice cases evokes similar concerns, along with fears that the use of guidelines at trial may either lower the standard of care, or, conversely, raise the standard of care to levels that are difficult to meet. Adding to this controversy is the recent case of Snyder v. American Association of Blood Banks (1996), in which the New Jersey Supreme Court upheld a jury finding that the American Association of Blood Banks (AABB) was liable to a plaintiff who contracted AIDS from an HIV-tainted transfusion, for negligent failure to adopt guidelines requiring blood testing for surrogate markers. This opinion is significant as the first to find a duty of care running from a medical guideline promulgator to a third person, the injured patient. The opinion is examined in depth and within the context of other relevant case law. The impact the opinion will have is difficult to gauge. The somewhat unique facts of the case, as well as the court's unusually stinging critique of the defendant, AABB, and its motivations informing its response to the concerns about blood contamination, may limit its value as precedent. However, precedent does exist in analogous non-medical cases for promulgator liability. The pros and cons of promulgator liability are weighed. While closer regulation of guideline development and promulgation or promulgator immunity may be warranted, it is premature to consider either seriously until the impact of the Snyder opinion can be appreciated.

Medical practice guidelines in malpractice litigation: an early retrospective.

The role of practice guidelines in malpractice litigation has been discussed in some theoretical detail. Little information is available, however, on how courts use guidelines or on the effort of state legislatures to explicitly link guideline compliance with malpractice defenses. We review all relevant case law and legislative enactments to shed light on the influence of medical malpractice on guidelines. We also use data from a nationwide survey of malpractice attorneys to supplement our legal analysis. Although guidelines are being used for both inculpatory and exculpatory purposes in common-law litigation (a two-way street), legislatures are interested in applying them only for exculpatory purposes (a one-way street).

Practice guidelines and malpractice litigation: a two-way street.

OBJECTIVE: To understand how practice guidelines are used in malpractice litigation. DESIGN: Review of the open and closed malpractice claims of two medical malpractice insurance companies, and a mailed survey of attorneys who litigate malpractice claims. SETTING: United States. PARTICIPANTS: Two insurance companies and 960 randomly selected malpractice attorneys. MEASUREMENTS: Frequency and nature of the use of practice guidelines in litigation; understanding and frequency of the use of practice guidelines by attorneys in malpractice cases. RESULTS: 259 claims opened in 1990-1992 at two insurance companies, including all obstetrics and anesthesia claims and a random sample of other claims, were reviewed. Seventeen of these claims involved practice guidelines, which were used as exculpatory evidence (exonerating the defendant physician) in 4 cases and as inculpatory evidence (implicating the defendant physician) in 12 cases. The only physician or patient factors associated with use of a guideline was a longer physician-patient relationship (P = 0.021). Nine hundred and sixty surveys were mailed and 578 were returned (response rate, 60.1%). Attorneys reported that once a suit is initiated, practice guidelines are likely to be used for inculpatory purposes (inculpatory in 54% of cases; exculpatory in 22.7% of cases). However, guidelines that seem to offer exculpatory value induce attorneys not to bring suits. The only attorney factor associated with increased use of guidelines was a practice in which more than 50% of business was in medical malpractice. CONCLUSIONS: Guidelines are used both by plaintiffs' and defendants' attorneys in malpractice cases. The emphasis in health reform proposals on guidelines as exculpatory evidence should be carefully considered.

Expert psychiatric evidence in sexual misconduct cases before state medical boards.

The growing problem of physician sexual misconduct has captured the attention not only of the medical and legal communities, but of the public as well. State medical boards, administrative agencies with generous rules of evidence and varying levels of expertise, face the difficult task of responding to patients' allegations of physician sexual abuse. This Article, based in large part on the author's survey of current state medical board practice, reveals an increasing reliance on expert psychiatric testimony to explain the behavior of complainants and accused physicians. Drawing analogies from the use of psychiatric evidence in child sexual abuse cases, the author examines the factors that boards must consider in determining the admissibility of expert testimony in physician sexual misconduct cases, and calls upon states to establish clear evidentiary rules to govern the use of such testimony in administrative hearings.