Clinical guidelines and professional liability: a short comment from the legal side

The paper explores the relationship between clinical guidelines and medical liability. In order to ascertain the standard of care required for example in ear surgery, courts rely on expert opinions and on existing clinical guidelines from medical societies. They assume that clinical guidelines express the reasonable standard of care that, when followed, insulates surgeons from liability. But judges keep the right to find that a set of clinical guidelines does not sufficiently protect the patient's health interests. If in contrast clinical guidelines are overly cautious (e.g. by requiring a scientifically questionable examination), there is no incentive stemming from the legal rules on medical liability to deter surgeons from following the guidelines. However, a growing concern about health costs may in the future influence professional behaviour as much as fear of a malpractice suit today.