DEALING WITH THE “MEDICAL JUDGMENT” DEFENSE

DEALING WITH THE “MEDICAL JUDGMENT” DEFENSE

The majority of states have a law like Washington’s regarding the issue of exercise of medical judgment. Our law provides (WP 1 05.08) :

“A physician is not liable for selecting one of two or more alternative courses of treatment, if in arriving at the judgment to follow a particular course of treatment, the physician exercised reasonable care and skill within the standard of care the physician was obligated to follow.”                        

Preventing or Minimizing Risk of Serious Medical Complications

  • agree with the proposition that:
  • when there is a risk of serious disease or death to a patient a physician should take reasonable & available steps to find out what the problem is and to cure it if possible?
  1. agree that where there is a question of serious disease or death, the policy ought to be: “don’t take chances.”

(1)  “it’s better to be safe than sorry?”

  • Agree the first and most important step would be to:

(1)        Fnd out what is causing the problem?

(2)        Second step would be to take reasonable steps to cure the problem?

Importance of Determine the Cause of Medical Symptoms

  1. Doctors are trained about the importance of finding out the cause of a patient’s problems – especially when serious diseases like cancer could be involved?
  • It is basic to good medicine to always treat the underlying cause rather then just the symptoms?
  • Aren’t doctors trained to perform careful examinations and order appropriate diagnostic tests in order to find out what the cause of someone’s problem is?
  1. Diagnoses is often made by considering likely causes and then taking steps to rule out the less likely in order to arrive a probable diagnosis?

2.         Aren’t doctors trained to perform careful examinations and order appropriate tests in order to find out what the cause of someone’s problem is?

(1) Known as “differential diagnosis”?

3.       It is not good medicine to:

(1)        Fail to do appropriate testing to rule out serious underlying causes of symptoms

(2)        Assume the cause is something not serious or important without finding out first and just taking a chance?

4.         Isn’t it important to obtain a careful history, perform a though physical exam and order appropriate studies to find out the cause of the problems rather then treat the symptoms and ignore the reason for them?

Rsk vs Bnefit Analysis

  1.     In deciding what diagnostic tests to find out what the cause of symptoms might be would the potential benefit of doing the studies be something to consider by the physician and patient?

2.         Cost of diagnostic studies

(1)        how much the studies cost would be a consideration?

3. What is the cost of ______?

4.         Time & difficulty

(1)        How difficult and time consuming it is to do the studies would be a consideration?

(2) What is involved?

(3) How much time it would take

(4) How long to get results back

5.         Whether it’s available or not

(1)        whether it’s available or not is a factor to consider?

a. was it possible to do?

6.         Accepted medical procedure or experimental

(1)        Whether it is an accepted medical procedure is a consideration i.e. not experimental or unproven?

a.   Was it is an accepted medical procedure?

b.         Commonly used by other doctors? for how long?

c.         Written about and described in medical books and journals?

7.         Risk and danger involved in using it

(1)        Whether there is any danger to the patient in doing the studies would be a factor to consider?

a.         Is there any significant danger involved in doing it?

Agree: It is better to be safe then sorry?

  1. Do you think “an ounce of prevention is worth a pound of cure~ when it comes to the risk of having cancer applies to patient care?

2.         In medicine isn’t it generally better to be “safe than sorrywhen we are talking about the risk of having colon cancer?

4.         It is basic to good medicine to always treat the underlying cause rather then just the symptoms?

5.         When any question of serious medical complications are involved, policy ought to be: If any doubt don’t take a chance – safety first.

(1)        Utilize all diagnostic testing first

(2)        Fence at top of cliff is better then ambulance waiting in valley below?

Importance of Signs

1.         In medicine, important to promptly react to any significant abnormal condition before it becomes serious enough to be fatal?

2. It is not acceptable practice to ignore abnormal signs which may indicate a problem serious enough to result in death?

(1)        If red warning light on dash board of airplane begins flashing careful competent pilot expected to find out why?

(2)        Medicine treats abnormal signs the same way?

(3)        Poor practice for pilot to put piece black tape over it and keep flying?

(4)        Medicine is no different

Colorado Attorney James Leventhal asked the defense medical witness these questions in a discovery examination which are worth considering:

Q. is it true, sir, that a physician can provide substandard care to a patient by exercising his or her judgment?

Q. and that can happen if you exercise judgment  with an inadequate history, that’s one possible — one  way that can happen, true?

Q. it can happen if you exercise your judgment before getting the results of testing?

Q. a physician can provide substandard care by exercising their judgment if their judgment is wrong and doesn’t meet the standard of care?

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