Clinical Guidelines as the fundamental criterion for the establishment of “Fault” in Medical Liability: Advantages, issues and proposals

摘要

In most jurisdictions, fault is the fundamental criterion of imputation of medical liability. The evaluation of physician conduct for the assertion or the rejection of fault is based on the required standard of care established by legislation. Due to the vagueness and case-specific character of the notion of fault, the courts face difficulties to resolve the relevant cases and physicians do not know what the law expects of them. This has led to discussion of the need to clarify the concept of fault and to adopt more specific standards. In fact, some claim that the law should take advantage of clinical guidelines by adopting them as the legal standard of care. Despite the superficial advantages of a guideline-informed standard of care, the problems arising from this approach are significant and certainly hinder its current application. The article closes with some proposals, which show that there is still a long road ahead before guidelines become the fundamental criterion to establish “fault”.