Professional Standards, Clinical Guidelines and Medical Liability: A Chance for Significant Improvement in Determining the Standard of Care?

in European Journal of Health Law
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Abstract

Despite the proposals to jettison fault/negligence as the fundamental criterion of imputation of medical liability, it remains at the core of most legal systems. At European level, the rise of cross-border healthcare has brought the issue of redress for medical malpractice and the need to enhance quality of care through the adoption of quality and safety standards to the fore. Furthermore, the necessity of best available external evidence to inform approaches to individual patient care is gradually acknowledged. In addition, clinical guidelines become an increasingly familiar part of clinical practice. Hence, the debate on their usefulness in medical malpractice cases has attracted significant scholarly attention. Despite their superficial attractiveness, clinical guidelines present core problems, which currently make them unsuitable as a determinant of the standard of care. The article concludes that, unless these issues are resolved, the usefulness of clinical guidelines in medical liability will be debatable.