by, Lexicon Legal
Medicine – more than many other fields – is an ever-evolving profession. Research is constantly being performed in order to determine the best possible methods of treating injuries, diseases, and illnesses. It is important for medical malpractice litigators to understand the developments in a particular area of medicine that is at issue in any given case. Litigators must understand old and current guidelines, and which guidelines establish the standard of care at the time a medical malpractice injury occurred. In March 2021, new lung cancer screening recommendations were issued by the U.S. Preventive Services Task Force and medical malpractice litigators should be aware of how these new guidelines can be used to both prosecute and defend medical malpractice claims.
WHAT IS THE U.S. PREVENTIVE SERVICES TASK FORCE
The United States Preventive Services Task Force is an independent panel of national experts for the prevention of illness, injury, and disease. The Task Force is not affiliated with the U.S. government. This independence allows its recommendations to be free from the appearance of political influence. . Their recommendations are not legally binding, but they serve as a helpful guide for clinicians and can also be strong evidence in a medical malpractice suit. If a clinician followed national recommendations made by a reputable panel of experts, this can be persuasive evidence that the standard of practice was met in a particular case. Conversely, if a clinician did not follow these guidelines – or even worse, was not aware of the changes at all – this could be persuasive evidence that the standard of practice was not met.
WHAT ARE THE NEW GUIDELINES?
In 2013, the Task Force issued a recommendation for annual lung cancer screening in patients aged 55 to 80 who had a history of smoking thirty packs of cigarettes or more per year. If these patients were currently smoking or had quit smoking within the past fifteen years, the Task Force recommended annual lung cancer screening through low dose computerized tomography (LDCT). The new 2021 guidelines expand the criteria for those patients who should be screened, now recommending LDCT for patients aged 50 to 80 who smoke twenty packs or more per year.
There are two important aspects of the recommendations that remain the same. First, the Task Force still recommends that annual screening be discontinued once a patient has stopped smoking for fifteen years or longer. Second, the Task Force also still recommends that screening be discontinued if a patient develops a medical condition that “substantially limits” their life expectancy. Screening should also be discontinued if the patient is unwilling or unable to have lung surgery.
HOW CAN MEDICAL MALPRACTICE LITIGATORS USE THESE NEW GUIDELINES?
Perhaps most importantly, litigators must understand that these recommendations are not binding on any medical clinician in the United States. Unless a jurisdiction specifically adopts these standards – whether on the recommendation of the Task Force or the state’s own medical experts – they are only recommendations. Additionally, medical malpractice litigators must be aware of the timeframe of their claims. Clinicians cannot be held to standards that did not exist at the time the claim arose.
So how can these recommendations be used? Medical clinicians have a legal obligation to stay current on developments in their area of practice. A plaintiff’s attorney might question a defendant about his or her knowledge of these new standards (and other clinical research in the area of lung cancer screening). If the defendant is not aware of new guidelines, this could establish a violation of the duty of care. Conversely, a defense attorney could prove that their client was aware of new screening guidelines and did apply them appropriately. Litigators should also note the situations in which screening is no longer considered appropriate. A plaintiff’s lawyer might question an inappropriate screening, while a defense attorney could prove that screening was no longer recommended for the plaintiff patient. Litigators on both sides of a case must work closely with their expert witnesses to understand exactly how these recommendations affect the standard of care that a particular defendant was obligated to use.
As with any evidence, litigators should not rely on these specific recommendations as their only evidence for or against the standard of practice. A strong case consists of layers of interlocking evidence that persuade a jury effectively. These recommendations can be bolstered by peer-reviewed research that supports their use, or similar recommendations from other professional medical agencies, or simply evidence that other practitioners in the area are using these recommendations. Litigators who rely on a single study or a single expert witness may find their arguments too weak to be sustained in court.
COMPREHENSIVE LITIGATION SUPPORT FOR ALL ASPECTS OF MEDICAL MALPRACTICE LITIGATIONS
Medical malpractice is one of the most complex areas of civil litigation. Litigators must stay current on both medical and legal issues that arise in their cases and need access to expert witnesses and up-to-date research to keep them informed in their legal arguments. Guidepoint connects litigators to all this information and more. Contact us today to learn about how our services support all of your litigation issues.