While there has been concern among physicians and physician groups that clinical practice guidelines are being misused in medical practice liability cases, it’s unclear just how big of a problem it really is, according to three presenters at Monday’s session entitled, “Practice Guidelines: Professional Responsibility or Professional Liability?”

According to Alan N. Yount, JD, ACC assistant director of Regulatory Affairs, clinical practice guidelines have not been used to any great degree in litigation, despite malpractice attorneys’ widespread knowledge of the guidelines.

In a review of 259 claims at two insurance companies from 1990 to 1992, for instance, just 17 claims involved practice guidelines. These figures compare to an estimated 33,424 medical professional liability claims for 1991, 38,430 claims for 1992, and 42,828 for 1993. Of those insurance company claims, guidelines were used as a “shield” by the defendant physician in four cases and as a “sword” by the plaintiff in 12 cases (one case was settled).

There has been no published systematic review of clinical guideline usage in more recent medical liability cases, but there is an indication that guidelines are still being used on occasion as a sword by plaintiffs. In a medical liability case from several years ago, for example, a patient who had suffered a massive myocardial infarction later sued her physician, in part because he did not prescribe cholesterol-lowering drugs at a sufficient dose to achieve the LDL level advised by the National Cholesterol Education Program guidelines.

There is evidence that malpractice attorneys look to guidelines when making pre-litigation decisions, Yount noted. In one survey of nearly 400 malpractice attorneys, 27 percent reported that a guideline had influenced their decision to settle a case, 26 percent reported that guidelines had influenced them at least once in the previous year not to take a case, and 31 percent reported that a guideline influenced their decision to bring a least once case in the previous year.

According to session presenter Mark Hall, JD, a professor of law and public health at Wake Forest University, the mindset of clinical practice guidelines does not translate well into the arena of medical liability.

“The medical profession’s desire to hold itself to a standard of care is remarkably more protective than in any other field,” Hall explained. In theory, he noted, guidelines should be very helpful to a defense. “They should not be of a threatening influence, but rather provide protection.”

Hall added that clinical practice guidelines represent an optimal standard of care. In medical liability cases, however, physician defendants are only supposed to be held to the professional standard of care in their community. Physicians should not let liability concerns drive their treatment decisions, Hall advised, or the continued development of practice guidelines.

Session moderator John E. Brush, MD, reinforced that very point, stressing that clinical practice guidelines are part and parcel to the ACC’s mission to foster optimal cardiovascular care and disease prevention.