For many years, healthcare professionals and to some extent their counsel have been enamored of promulgating a bewildering array of clinical practice guidelines and so-called best practices (“guidelines”). These documents are intended to improve the quality of care; provide a defense to medical malpractice claims. In this presentation, we examine the record, and find that guidelines are more often used against practitioners than in their defense.
Clinical guidelines are statements that have been systematically developed and which aim to assist clinicians in making decisions about treatment for specific conditions. They are linked to evidence and are meant to facilitate good medical practice. The National Institute for Clinical Excellence (NICE) is part of the Government’s agenda for healthcare. One of its main functions is to develop, issue and encourage the use of objective guidelines, thus promoting ‘best practice’. A key issue that follows is how lawyers and the courts might use such guidelines in medical litigation.
During live session, we will look at guidelines themselves, and discover that, numerous though they are proliferating that, originating with experts. They are nevertheless inconsistent and contradictory, ironically, guideline purveyors often ignore guidelines designed to help them do their work; that, for all their progenitors’ efforts to keep them current, guidelines are often obsolete at publication. Despite the sophistication of the authors, the guidelines seldom make adequate allowance for the variability of human biology; that guidelines vary between excessive and insufficient detail. For all their emphasis on the science, guidelines tend to reflect the biases of their creators. In short, we should hesitate to prepare guidelines at all, and if we insist on creating them we should impose far more stringent restrictions on guidelines to be published and cull them aggressively as the medicine changes.
- Promulgating clinical practice guidelines and best practices, on a wide array of topics
- Reliance on clinical practice guidelines and best practices
- Learn what to do about the misuse of guidelines against healthcare professionals
- Find a plethora of guidelines from prestigious organizations
- Know guidelines that are often out-of-date
- Know long and dense guidelines, yet others are vague and provide too few details to “guide” much of anything
- Understand couched guidelines
- Know how to use guidelines against practitioners
Areas Covered in the Session:
- Overview and definition of clinical practice guideline
- Relevant rules of evidence
- Defendants’ efforts to use guidelines
- Plaintiffs efforts to use guidelines
- Sources of guidelines
- The Institute of Medicine’s criteria for guidelines
- The multiplicity of guidelines
- The inconsistencies of guidelines
- The lack of consensus on the meaning of “evidence-based”
- Obsolescence of guidelines
- Inflexibility of guidelines
- Vagueness of guidelines
- Conflicts of interest among guidelines authors and the impact of those conflicts on the finished product.
- The validity of the scientific premise underlying guidelines
- The validity of the legal premise underlying admissibility of guidelines
- The efficacy of guidelines
- What to do about the misuse of guidelines against healthcare professionals
Who Should Attend:
- Health care professionals
- Healthcare administrators
- Defense counsel
- Professional liability insurers, including claims professionals and actuaries
- Risk managers
- Medical academicians
- Health regulatory boards
About the Presenter:
Joe McMenamin, M.D., J.D., FCLM is the Principal at McMenamin Law Offices (“MLO”), PLLC in Richmond, Virginia. Much of MLO’s practice is devoted to advising companies and providers on telemedicine issues. It also provides health law services, counseling providers and life sciences companies, defending health care professionals in court and before health regulatory boards, and offering risk management advice.
Earlier in his career, Joe practiced law as a partner at McGuireWoods LLP. While there, he defended medical malpractice cases and products claims against life sciences companies. It was there that he first saw hospital policies and procedures used against their authors in malpractice claims, much as, more recently, clinical practice guidelines have similarly become weapons against practitioners.
Before being admitted to the Bar, Joe practiced emergency medicine at hospitals in Pennsylvania and Georgia on a part-time and full-time basis over a seven-year period overlapping his specialty training and legal education. He presently serves as general counsel to the Virginia Telemedicine Network and is a member of the Legal Resource Team of CTeL, the Center for Telemedicine and eHealth Law. He has published and lectured extensively on topics pertinent to his practice
Joe graduated summa cum laude from Washington and Lee with a BS in chemistry in 1974, with an MD from the School of Medicine at the University of Pennsylvania in 1978, and with a JD from the School of Law at the same institution in 1985. He trained in internal medicine at Emory University and Grady Memorial Hospital in Atlanta from 1978 to 1981. He is board-certified in Legal Medicine, a Fellow of the College of Legal Medicine, and an Associate Professor of Legal Medicine at Virginia Commonwealth University.
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