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Is there a Standard of Care?

In 1949, a Montana forest fire engulfed a parachute brigade of firefighters. Panicking, they tried running up a seventy-six-percent grade and over a crest to safety. Their commander, a man named Dodge, saw that it wasn’t going to work. He stopped, took out some matches, and set the tall dry grass ahead of him on fire. After the new blaze spread up the slope, he stepped into the middle of the burned-out area it left behind, lay down, and called out to his crew to join him. He had invented what came to be called an “escape fire.” His men either thought he was crazy or never heard his calls, and ran past him. All but two were caught by the inferno and perished while Dodge waited inside his escape fire, virtually unharmed.[1]

Doctors are often dropped into the middle of a patient’s disease cycle, applying what they know to a situation that may not be completely knowable. These physicians face a difficult conundrum: which care is appropriate? And when care is provided, how can they know that the care was good care? Many would suggest that doctors use the standard of care. Therein lies the heart of the conundrum – unlike Dodge’s ingenious single path to safety; the current medical standard of care is widely variable. Unsurprisingly, two different patients, exhibiting similar disease symptoms in the United States can expect to receive very different care.

However, research has shown that all care is not equal.[2] Physicians treating common issues deliver clinically beneficial treatment only half of the time.[3] In 1999 and again in 2010, the Institute of Medicine’s (IOM) report, To Err Is Human, found that every year, tens of thousands of people die in hospitals from preventable medical errors.[4] Over a million more are injured.[5] The IOM defines three categories of preventable medical errors, based on good or bad physician conduct.[6] Yet in issuing these definitions, the IOM falls victim to the standard of care conundrum. The report ultimately fails to identify how the IOM determined which conduct was good and which was bad.

Without a defined care standard, every adverse outcome can be second-guessed. Many physicians feel that “[a]t any moment, [their] years of effort in building [their] practices could be destroyed.”[7] And there is truth behind that fear. After analyzing data from 40,916 physicians covered by a nationwide insurer, one study determined that the average physician spends almost five years of their career with an unresolved, open malpractice claim.[8] Practicing physicians protect themselves and their patients with overtreatment, defined as care that is too expensive, inefficient, unnecessary, or old-fashioned,[9] and defensive medicine which is the use of tests, procedures, or visits, to avoid high-risk patients or procedures, and reduce exposure to malpractice liability.[10] Overtreatment and defensive medicine result in significant financial waste – up to one in every three dollars spent annually on U.S. health care.[11] Recent reports put this number at $840 billion, squandered annually.[12]

The mandate for all health care systems is clear: improve outcomes, reduce cost, and eliminate waste. These ambitious goals require an explicit standard of care to instruct physicians, patients, and attorneys about the social expectations of doctors treating specific problems instead of an implicit standard of care that is never fully articulated. Like the escape fire, healthcare needs an ingenious single path to safety. The goal of this paper is twofold: First, to illustrate the vagueness and confusion inherent to the current system by examining the three primary sources used to define the standard of care and how these conflicting standards ultimately prejudice both patient and physician. Second, to examine the potential solutions and suggestions in the path forward.

[1] See generally Escape Fire, Don Berwick, (last visited March 5, 2015). [2]Katharine Van Tassel, Harmonizing the Affordable Care Act with the Three Main National Systems for Healthcare Quality Improvement: The Tort, Licensure, and Hospital Peer Review Hearing Systems, 78 Brook. L. Rev. 883, 887 (2013) [3] Id. [4] See Linda T. Kohn et al., Inst. of Med., To Err Is Human (eds. 1999). [5] See, e.g., Office of the Inspector Gen., U.S. Dep't of Health and Human Servs., Adverse Events in Hospitals: National Incidence Among Medicare Beneficiaries, at ii (2010) [6] Minimizing Medical Errors: Legal Issues in the Debate on Improving Patient Safety, AHLA-PAPERS P05140302 [7] Strauss, D., What Does the Medical Profession Mean By “Standard of Care?”,, (last visited February 23, 2015). [8] Seth A. Seabury, Open, Unresolved Malpractice Claims, [9] Health Insurance Coverage and Reimbursement Decisions,, (last visited February 23, 2015). [10] Paul Manner, “Practicing defensive medicine—Not good for patients or physicians.”, (Last visited March 4, 2015). [11] See Debra Sherman, Stemming the Tide of Overtreatment in U.S. Healthcare, Reuters (Feb. 16, 2012), http://, (last visited February 23, 2015). [12] Institute of Medicine, The Cost of Health Care: How Much Is Waste?, media/Files/widget/VSRT/healthcare-waste.swf, (last visited February 23, 2015).

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