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Changing Standards of Care and Your Malpractice Risk

Changing Standards of Care and Your Malpractice Risk

O’Grady: There is a good deal of emerging literature concerning the new automated multi-arrays utilizing peripheral blood samples for the identification of genetic abnormalities. Testing for 100 or more occult genetic disorders can now be rapidly processed by automated machinery with highly reproducible and reliable results. With this type of testing, routine surveillance for many potentially important genetic conditions - many of which are recessive - can be performed at low cost. So, given the availability of this innovation which is now being marketed to clinicians, what does the standard of care dictate regarding implementing such surveillance tests into our practice? Is not performing the test, or at least, not offering the test a deviation from a care standard? If testing using these new arrays is currently not the standard, how do practitioners know when, if ever, the transition to becoming the standard of care is made?

Giordano: These are interesting questions, and not easily answered. You have to remember in most scenarios, the law does not determine the standard of care. Instead, the standard of care is determined by the professionals in the field of practice. It is for this reason that expert witnesses are required to testify pertaining to the duty that was owed. Generally speaking, malpractice in its truest sense is either failing to do something that the average qualified practitioner would have done under the particular circumstances, or conversely undertaking an action that the average qualified practitioner would not have done. So the standard of care is not supposed to be determined by “outsiders” so to speak, meaning that plaintiff’s lawyers and juries do not impose their will as to what they think the standard of care ought to be, but instead determine the standard based upon the testimony of expert witnesses. In the setting of multi-array genetic testing, the question then is when, if ever, does it become accepted within the specialty of ob/gyn that the average qualified practitioner should be ordering such testing and in what circumstances? So even if the testing is reliable and cost-effective, but if it’s not embraced by the field as something that should be offered by practitioners, then failing to do so should not be malpractice.

O’Grady: But it seems that with the availability of information that is accessible, advances in medicine can be rapidly transmitted throughout the medical world, especially given the of access to new information via the web, e-journals, and in light of the many CME programs now available on line. Doesn’t this create a burden upon physician to incorporate such advancements more expeditiously?

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