In Defense of the Professional Standard ofCare: A Response to Carter Williams on"Evidence-Based Medicine"

I. IntroductionFirst, I would like to congratulate Carter Williams on receiving the Law Council Law Review Award for his excellent Note, Evidence-Based Medicine in the Law Beyond Clinical Practice Guidelines: What Effect Will EBM Have on the Standard of Care?1 As the song says, "[i]f you become a teacher, by your pupils you'll be taught."2 Little did I know that while Carter was sitting in my Health Care Quality Regulation Class, where we were focusing on medical malpractice-including, of course, the standard of care-he was writing his Note on "Evidence-Based Medicine," a phenomenon I had never heard of! I am very pleased to be part of this Colloquium and appreciate the opportunity to respond to Mr. Williams's thoughtful and provocative work.Reading this piece set me to thinking about the interrelationships between law and medicine. The proverbial distrust between the members of these two professions is borne out by friends of mine who teach topics in Health Law and Bioethics in universities that have both law and medical schools. Some of my brave colleagues have taught classes with both law and medical students. They invariably report that the groups start off on opposite sides of the room, regarding their counterparts from the other profession with watchful and mistrustful eyes. In the most successful instances, the teacher is able to facilitate a situation where the students actually listen to each other and come to appreciate each others' professional positions; sometimes they actually mingle! But things do not always work out so happily, and some of my colleagues swear they would never try the mixture again. It strikes me that in the reluctant dance between law and medicine-more specifically, between lawyers, judges, legislators, and regulators, on the one hand, and health care providers, particularly doctors, on the other-the question, at any one point, is, "Who has the lead?"Most of the time, it is clear that the law has the lead. The "health care industry," as it has come to be called, is one of the most highly regulated segments of American society. From Medicare3 and Medicaid,4 with their comprehensive regimes and multitudinous fraud and abuse regulations, to ERISA (Employee Retirement Income Security Act of 1974)5 and EMTALA (Emergency Medical Treatment and Labor Act),6 from HIPAA (Health Insurance Portability and Accountability Act of 1996)7 to the Health Care Quality Improvement Act of 19868 and the Patient Self-Determination Act,9 from the FRA (the Federal Rehabilitation Act)10 to the ADA (Americans with Disabilities Act)" and other statutes too numerous to mention, each with its own volumes of regulations and all presided over by a host of alphabet-soup agencies, the influence of the federal government on even the minutiae of health care practice is felt on a daily basis in every medical office and health care institution in the country. On the state level are licensing statutes,12 official disciplinary boards,13 numerous regulations that parallel or extend various federal provisions,14 and the law of medical malpractice itself, usually found in a mixture of statutes and case rulings issued by the state's courts.Of course, I recognize the need for at least most of these laws and regulations. Medicare, once so opposed by the American Medical Association (AMA),15 has turned out to redound to the benefit of both practitioners and health care institutions. Some of the laws that affect health care providers are directed against discrimination. Others benefit workers who obtain health benefits through their employment. A fair number have been enacted in direct response to reprehensible behavior on the part of some members of the health care profession, such as Medicare fraud by some doctors and clinics, or "patient dumping" by hospitals refusing emergency care for patients unable to pay. State licensing statutes and disciplinary boards aim to protect the health care consumer from unqualified or unethical practitioners-certainly an important social goal. …