It’s a simple question. Given a specific set of facts concerning the presentation of a patient in the ED, what would the reasonably prudent physician do? Or stated more specifically, was an emergency physician’s actions in response to a given set of facts reasonable? This is the “standard of care” against which the physician’s actions will be judged in a case of alleged negligence. It’s called “the reasonable man doctrine” according to Black’s Law Dictionary, and it’s pretty simple. Failing to be “reasonable” is “negligent”. But what is “reasonable?” Black’s attempts to clarify the matter by defining that the standard of care is the “average degree of skill, care, and diligence exercised by members of the same profession.”
There’s the rub. While Black’s surely intended for “average” to encompass a broad swath - a broad bell curve - of reasonable physicians, the idea of “average” has come to mean something quite different to physicians. And that meaning has been exploited by lawyers. Instead of grouping together around a broad idea of reasonable care, physicians mentally line themselves up, best to worst. In this model the bell curve flattens out and we proclaim ourselves to be the “average” physician. And anyone who is just a little worse than me “below average” and therefore must be negligent. The irony is that most of us don’t think of ourselves as truly average clinicians, but somewhere in that upper half. And maybe that is true. But we distort the line of negligence in so thinking.
In truth, each state has their own set of jury instructions that defines the standard of care. Most are similar to the model instructions in Connecticut which defines the standard as “that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” The question then is what is “acceptable and appropriate” to a “reasonably prudent” emergency physician? That’s what the court wants to know.
For years Emergency Physicians Monthly has published a regular column called The Standard of Care Project. The goal was to broaden the base of expert opinion on a given topic to see if there was agreement as to the standard of care in some stereotypical cases. The problem, however, was the same that is encountered by any paid expert, either plaintiff or defense – the outcome was known prior to giving an opinion. Moreover, SOC Project respondents were allowed to opine as to what “they” would have done, given that knowledge. The result was that very bright people with sterling academic credentials would split hairs on exactly what should have been done, all presuming that if the EP in question had done as they opined they would avoided the bad outcome.
The court, using the standards of common law, seeks to judge a physician’s actions not by what is ideal, but by what a reasonable colleague of his would do given his circumstances. The implicit requirement is that those who judge his actions should have only the information that he or a reasonable physician in his shoes would have had under his same circumstances. Failing to meet this standard of reasonable behavior, the physician is judged to be negligent and responsible – liable – for any injuries that are causally related to his failure to act reasonably.
But we emergency physicians seem to have a very hard time with this simple standard. Recently, The Standard of Care Project took a radical turn that has longstanding implications. This month, 10,000 EPM readers received an email from me with a scenario that is a current case in litigation. The names, dates, ancillary facts not important to the question of the case and most importantly the result of the case, have either been changed or omitted to protect the privacy of the patient and the physician involved. In essence, it is a hypothetical with implications for a real case. The question posed at the end of the scenario is incredibly simple and straight forward. Given the information that this physician possessed at the time the patient was in the ED, did he or she act reasonably?
Some readers have refused to respond for fear that if they “get involved” they might be dragged into litigation that doesn’t involve them. Not only is that possibility blocked peremptorily, it reflects the worst of our society’s fears of responsibility. It is surprising to see a group of people who are known for their willingness to run towards a problem act in this manner. It’s understandable, but I hope that readers will reconsider and realize that this is an opportunity to become involved in the answer to the explosion of malpractice cases, with minimal involvement.
The second area of resistance that the Project has encountered is a simple and persistent misunderstanding of what the court is seeking. We, as emergency physicians, are always seeking to find the best possible way to handle a given circumstance, the best practices with the best possible chance for good outcomes. The problem comes when we try to use this to find the standard of care. Encountering a bad outcome, we often reverse engineer the decision-making process to look for anything that could have been done different that might have resulted in a good outcome. We’re a lot like the test pilots in the 1983 movie The Right Stuff. After one of the many deadly crashes that occurred at the dawn of the space program, they’d gather at their favorite watering hole and discuss what went wrong. In each case, they determined that ‘they’ would not make such a mistake. They had ‘the right stuff’. In the same way, we, in our bravado, sit around judging the actions of a colleague, given the benefit of hindsight, proclaiming that we would never do what he just did.
The last time I took the oral boards for ABEM, I recall a rather straight forward scenario that seemed to have a simple answer. After telling the examiner what I would do, he asked “Is that all?” I paused and took a deep sigh. “Could there be more to this than what I see?” I thought, fighting off my rising panic. Finally I realized that he was not seeking a perfect or exhaustive answer, but a reasonable answer. I relaxed and said. “No, that’s what I would do.” His smile told me what I needed to know. Later, in discussing the day’s events I learned of how others had gone off on endless rabbit trails fearing that they might have missed something, while failing to answer a simple question. The court, like the ABEM examiner, is not seeking to know what perfect care would be, but rather what “reasonable care” would look like.
Where we have problems is that we do not want to accept that many reasonable and prudent courses of action can have bad outcomes. We assume that any course that “could” have been taken to avoid the outcome “should” have been taken. We assume that we, being the smart and reasonable doctors that we are, would have foreseen the untoward outcome and taken the higher road to the right answer. In this way of thinking, even if only 5% of the physicians would actually have taken this course of action, that course would be the standard of care. This, of course, is illogical, but it makes us feel better about ourselves.
Some very well intended readers have written to me to critique that the SOC Project could “dumb down” our speciality. To this I can only respond that “best practices” will always be the leading edge of our speciality. But there is a lot of room between best practices and negligence. Emergency Physicians Monthly will always join with all our colleagues to research, promote, and critique what are the best practices. But we do ourselves a disservice and we misinform our patients and the courts to suggest that anything other than the currently held best practices is negligent. When best practices are first promulgated as such, they are hotly debated, as they should be. Eventually, over time, they become accepted. But there are still early and late adopters. Each clinician has his own reasons for being one or the other. And while it is true that eventually best practice becomes the standard of practice, we should be warned not label everyone who adopts later than me, negligent.