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Medicine and Public Policy |

Practice Guidelines and Malpractice Litigation: A Two-Way Street

Andrew L. Hyams, JD, MPH; Jennifer A. Brandenburg, BA; Stuart R. Lipsitz, ScD; David W. Shapiro, MD, JD; and Troyen A. Brennan, MD, JD, MPH
[+] Article, Author, and Disclosure Information

From the Harvard School of Public Health and Brigham and Women's Hospital, Boston, Massachusetts; and San Francisco General Hospital, San Francisco, California. Requests for Reprints: Troyen A. Brennan, MD, JD, MPH, Department of Health Policy and Management, Harvard School of Public Health, 677 Huntington Avenue, Boston, MA 02115. Grant Support: In part by the Physician Payment Review Commission, Grant 92-G04. During the period of the grant, Dr. Shapiro was senior analyst at the PPRC.

Copyright ©2004 by the American College of Physicians

Ann Intern Med. 1995;122(6):450-455. doi:10.7326/0003-4819-122-6-199503150-00008
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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.


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Figure 1.
Litigation file review: practice guideline utilization.

The litigation file review started with 259 claims and identified 17 that involved the use of guidelines. The disposition of these claims is noted.

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Figure 2.
Attorney survey resulted in a response rate of 60.


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