Assistant Professor University of Texas Dell Medical School Austin, Texas
Disclosure(s): No financial relationships to disclose
Disclosure(s):
john Bedolla, MD, FAAEM, FACEP: No financial relationships to disclose
Background In medical malpractice litigation, the standard of care is typically defined not by published guidelines, but by what is considered customary care, as interpreted through competing expert testimony. This customary care framework is susceptible to multiple external pressures: doctrinal feedback (where redundant or unvalidated practices solidify into perceived standards), litigation anxiety, adversarial expert bias, venue effects, and plaintiff-side case screening based on damage potential rather than clinical merit. These forces help explain the simultaneous existence of so-called judicial hellholes and a large population of injured patients who never pursue claims. Ultimately, this system often fails in its dual aims: to compensate those harmed by substandard care and to protect clinicians who practice reasonably. ALI Reform Proposal The American Law Institute (ALI) has proposed replacing the customary care standard with one based on reasonable care, centered around evidence-based medicine and the use of Clinical Practice Guidelines (CPGs). Emerging Case Law Recent rulings—Gambaccini v. SUMA Health and Marsillo v. Dunneck—suggest a growing judicial openness to integrating evidence-based standards and CPGs into malpractice adjudication. These cases signal the potential for a more objective and reproducible framework for defining standard of care. Recommendations Clinicians can reduce risk and uncertainty by exceeding minimal documentation norms: Conduct thorough physical exams that include statistically meaningful findings. Use validated clinical decision tools and consensus-based guidelines. Clearly document pertinent positives and negatives. Engage patients in shared decision-making, and reflect that process in your notes. This section will detail high-yield physical exam elements and recommended language for articulating medical decision-making in a way that supports defensibility. Conclusion By incorporating more evidence into your clinical assessments and documentation—particularly in the history, physical exam, and medical decision-making—you not only reduce the likelihood of catastrophic outcomes but also strengthen your ability to mount a robust legal defense should an adverse event occur.
Learning Objectives:
Attendee will be able to understand foundational rules of evidence in malpractice litigation,
After this session, the learner will be able to add additional evidence based history and physical examination elements to enhance care, reduce risk, and make any bad outcomes more defendable.
The attendeerwill be able to use selected high value clinical scores and practice guidelines to enhance care and reduce medicolegal risk.
