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THE IMPORTANCE OF SETTING OBJECTIVE STANDARDS

There have been many suggested solutions to the expert witness problem. Most of these are defensive strategies that seek to reduce the availability of plaintiff's experts; they do not address the root problem of ambiguous medical practice standards.

The best approach is to reduce the ambiguity in practice standards. While courts will still require expert testimony, both judges and juries are very deferential toward explicit standards of practice that are promulgated by credible professional organizations. Since plaintiffs' attorneys are aware of the increased difficulty in proving a case against a physician who has followed approved standards, standards lead to reduced litigation. (See Chapter 34.)

Most important, standards allow effective quality assurance review. This reduces the legal risk to peer reviewers and improves the quality of care. Standards are also critical in medical cost containment. Most standard-setting efforts in the financial context have been directed at reducing unnecessary care. As the pressure to reduce medical care costs increases, well-articulated practice standards will be critical in ensuring that cost-containment efforts do not deny patients necessary care. Without standards to back their decisions, individual practitioners will not be able to resist third-party payer pressures to reduce medically indicated care.

There are three impediments to standard setting in medical practice. The first is the belief that setting a standard will inhibit innovation. While this may be relevant in a medical research setting, innovation is much less significant in routine medical care. Even in a research setting, rigid adherence to standard protocols is fundamental to the controlled trials that advance medical science. The second is resistance by medical malpractice defense lawyers. Defense lawyers assert, correctly, that it is much more difficult to defend a physician who violates an explicit practice standard. This ignores the reduced litigation against physicians who do comply. It also ignores the long-term reduction of negligent practice as the peer review process urges practitioners to follow appropriate practice standards.

The third, and most important, impediment to standard setting is the Federal Trade Commission (FTC). In its efforts to reduce anticompetitive practices in medical care delivery, the FTC has discouraged professional standard setting. While correctly recognizing that many professional standards are anticompetitive, the FTC does not seem to recognize that this is the price of professional self-regulation. Any rule that restricts marginal practitioners will reduce competition. The fear of FTC enforcement actions has discouraged professional societies from setting standards for practice. This has been most evident in the reluctance to address entrepreneurial practices that encourage patients to undergo unnecessary and vanity procedures. The FTC has focused on reducing prices through competition, ignoring the problem of physicians' and hospitals' using the classic advertising technique of creating a demand for unnecessary or inappropriate services.

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