This is an issue I've been interested in for a while.
In the UK, for many years the question of what the acceptable
standard of care is has turned on the "Bolam test" (named after a
celebrated case) - which is that if the practice under question is
supported by a body of medical opinion, then its OK. The courts
tended to shy away from making any judgement about the facts/evidence
of effectiveness, and to rely on the views of expert witnesses. In
practice, this meant that if a defendant could get an expert to
testify that the practice, however odd, was espoused by a body of
other medical opinion, it would meet the standard of care test (even
if majority medical opinion opposed it). Legal actions often ended
up with expert witnesses on both sides, saying different things,
and the court being unwilling to choose one view over another - and
so the action for negligence would fail.
However, a recent House of Lords judgement in Bolitho v City and
Hackney HA (1998 I think) changed the Bolam test - to include a
requirement that the practice should not only be supported by a body
of medical opinion but also that it should be of demonstrable
reasonableness - in other words, that the facts/evidence of
effectiveness should hang together. For the first time, courts are
showing more willingness to question expert witnesses on the
rationale for their opinion. In addition, legal changes in the UK
(the so called Woolf reforms) mean that in future most clinical
negligence actions will have a single set of expert witnesses, who
are jointly instructed by both the defence and plaintiff, to avoid
the problems outlined above.
In a paper about this that I co-wrote with Trevor Sheldon last year,
we cited a hypothetical case of a leg ulcer patient suing his
district nurse for negligence because she had not used a four layer
compression bandage to treat and cure his leg ulcer. The defence
that many district nurses do not use compression bandages would,
these days, be little defence against such an action.
(if you want it - its at Walshe K, Sheldon TA. Dealing with clinical risk: implications of the
rise of evidence-based healthcare. Public Money and Management, 1998;
18(4):15-20)
I think that evidence-based legal action - patients suing because
practitioners have stuck to tradition/precedent instead of using
interventions of proven effectiveness - could have a lot to
contribute to the progress of ebh.
Kieran
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Dr Kieran Walshe, Senior Research Fellow,
Health Services Management Centre, University of Birmingham
Park House, 40 Edgbaston Park Road, Birmingham, B15 2RT.
Tel: (0121) 414 3199 (direct) or (0121) 414 7050.
Fax: (0121) 414 7051. Mobile: (07887) 894639.
Email: [log in to unmask] Website: http://www.bham.ac.uk/hsmc
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