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Case Law Update: SJC Limits Doctors’ Liability to Non-Patients

car crashThe Massachusetts Supreme Judicial Court ruled today that a doctor who told his patient that it was safe to drive was not liable to another motorist injured when the patient suffered a grand mal seizure and lost control of his car.  The Court’s decision in Medina v. Hochberg restricted the application of the Court’s earlier opinion imposing liability on physicians.

The patient, Robert Riskind, was being treated by a Massachusetts General Hospital neurologist, Fred Hochberg, for an inoperable brain tumor.  The tumor caused Riskind to suffer seizures on several occasions, including a previous grand mal seizure which, under Massachusetts law barred him from driving for six months.  Riskind followed Hochberg’s instructions, and did not drive during this period.

Hochberg continued to treat Riskind, and several months later, told him that he could pursue his normal activities, including driving.  Riskind, again following Hochberg’s instructions, was driving on December 10, 2001, when he suffered another grand mal seizure, and lost control of his car, injuring Richard Medina, who was on his way home from work.  Medina brought suit against Riskind and Hochberg, claiming that Hochberg was negligent in permitting Riskind to drive given his numerous medical problems.

The Court chose to narrow the application of an earlier decision, Coombes v. Florio, in which it had held that a doctor could be liable to a non-patient who was injured as a consequence of a doctor’s failure to warn a patient of side effects of a prescribed medication.  Although this decision caused much hand-wringing among malpractice insurers, who are always active in trying to limit patients’ rights, it has resulted in very few lawsuits, and does not require doctors to do anything they shouldn’t already be doing.

Distinguishing Coombes, the Court in Medina held that a doctor has no liability to non-patients who are injured as a result of complications or effects of the patient’s underlying medical condition, as opposed to consequences of an affirmative act by the doctor, such as a prescribed treatment or medication.  A doctor is only liable if his treatment of the patient “creates or increases” the risk of harm to the general public.

In reaching its decision, the Court also relied heavily on numerous “public policy” grounds urged upon it by doctors and their insurance companies.  The Court gave short shrift to the concern that the public may be endangered by patients whose medical conditions put others at risk, instead focusing on the supposed cost to doctors of increased litigation and the privacy rights of the ailing patients whose conduct causes harm.

The result is that there is an entire class of injuries that doctors have the ability, but not the obligation, to prevent. Without question, the doctor would be liable to the patient if the patient himself were injured by the doctor’s failure to give him important safety information.  Yet when the injured party is not the patient, the doctor escapes liability for not doing what good medical practice would require him to do anyhow.  Proper information and warnings given to the patient protect not only the patient, but the public as well.

And in focusing on the potential liability of the doctor, the court fails to recognize that in some cases, it will be the doctor, rather than the patient, who is in the best position to prevent harm to others.  A patient may be completely unaware of the potential danger he creates by driving or otherwise engaging in activities that could harm himself or others–as in the case of Mr. Riskind, who was simply following his doctor’s advice when he crashed into Mr. Medina.

The Supreme Judicial Court’s decisions are available on its public website.


Malpractice Past and Malpractice Future

paid claimsIn an earlier post, I offered some information to help answer questions raised by many clients about how they could have learned more about their doctor’s malpractice history.  Although they are far from perfect, many state medical board websites have some information available for patients who know where to look.  They don’t include any pending claims, and sometimes even paid claims are mysteriously absent.  But many patient advocates feel they are better than nothing.

Not unexpectedly, the physician profiles are full of disclaimers that downplay the significance of malpractice payments in evaluating a doctor’s competence.  They offer a wide variety of reasons why the information that they are posting should be ignored.  But many patients would disagree with the medical boards, believing that they are better off avoiding doctors with a history of malpractice claim(s).

There is some scientific support for their belief.  A number of authors have studied malpractice insurers’ closed claim files to determine whether doctors who are successfully sued one or more times are more likely to be sued again.  The answer is generally yes.  The majority of doctors are never sued at all.  Very few have more than one claim.  But there are a number of repeat offenders.

As in many areas, however, the law does not mirror reality!  Despite a number of statistical analyses showing that doctors with one or more malpractice claims are more likely to be sued again, the law considers each case individually.  Clients (and some lawyers) are usually surprised to learn that a doctor’s malpractice history is not admissible in court.  Thus, a jury never hears whether a doctor has paid malpractice claims in the past, or has never been sued at all.  The legal theory is that the jury is not deciding whether the defendant doctor is a good doctor or a bad doctor, but whether he or she was negligent in the particular case in question.  The fear is that, if a jury learns that a doctor has been sued before, or has settled claims, it will assume that the doctor has done it–committed malpractice–again.

Doctors with malpractice histories are not alone in benefiting from this rule.  A driver who causes his fifth accident can rest assured that the jury will never be told about the four previous crashes.  And the same rule is carefully applied in criminal cases: in most cases, a jury never learns about a defendant’s prior convictions.

The goal of insuring that each case is judged on its own merits is admirable; certainly no one would want to be adjudged liable or guilty solely on the basis of past misdeeds.  However, the absence of information about past accidents or crimes may lead jurors–who aren’t told about the rule excluding such evidence–to believe that there are none, and to give the defendant the benefit of the doubt.

To be sure, there are many reasons why a claim may be paid that don’t reflect on a doctor’s competence or overall quality of care.  On the other hand, there are habitually careless doctors who manage to escape liability for years.  While a malpractice history should not be the only factor a patient uses to choose a doctor, it’s still worth considering.

Read a few studies finding that a history of prior claims is a risk factor for more claims here and here and here.


Beyond the Boundaries of Ethics Research: the SUPPORT Study

premieA study designed to identify the safest oxygen levels for premature babies is under heavy fire for causing high levels of blindness, and perhaps even unnecessary deaths, among the 1316 very small infants who were enrolled.  Critics charge that 23 major research hospitals, including noted New England facilities Tufts Medical Center, Brown University, Women & Infants Hospital and Yale University, subjected babies to added risks, while failing to tell their parents about the potential dangers.

The SUPPORT (Surfactant, Positive Pressure, and Oxygenation Randomized Trial) study, conducted from 2004 to 2009, was designed to find out whether premature babies whose immature lungs required oxygen support were more likely to die or become blind if their oxygen levels were targeted to either a high or a low range.  As with any medical research study, the participants—or in this case, their parents—signed a consent form that was supposed to make sure they fully understood the risks and benefits of the study.  Yet in March of this year, the Office for Human Research Protections (OHRP), an arm of the federal Department of Health and Human Services (DHHS), charged the University of Alabama Birmingham (UAB), one of the lead participating hospitals, with failing to tell the parents that the amount of oxygen their baby received might affect whether the baby would develop blindness, a brain injury, or even die.  Instead, the only risk mentioned was that the device used to monitor the baby’s oxygen levels might cause skin breakdown.  While the consent form suggested to parents that babies who received lower levels of oxygen might have fewer eye problems, it failed to point out that the converse might also be true: babies assigned to receive more oxygen would be at higher risk for ROP.  And nowhere in the consent does it say that a baby might be at higher or lower risk of death, depending on the random assignment to one group or the other.

A month later, Public Citizen, a private non-profit group that advocates for patient safety, fired off a letter to DHHS Secretary Kathleen Sebelius, claiming that the violations occurred at all of the participating hospitals, not just UAB, and calling for OHRP to go further by requiring the facilities to apologize to parents for what they had done, and to institute corrective measures to prevent similar lapses in the future.

Several parents whose babies died have already filed lawsuits against UAB.  As the deficiencies in the consent form, and the adverse effects on some of the babies become more well-known, it is likely that there will be more, including here in Massachusetts and Rhode Island.

The cause of the controversy focuses on the researchers’ decision to assign babies randomly to receive either a higher (91-95%) or lower (85-89%) oxygen concentration.  Normally, the amount of oxygen a premature baby receives is carefully individualized depending on the infant’s medical condition and other treatments he is receiving.  Neonatologists attempt to keep the oxygen levels as low as possible to avoid the complication known as retinopathy of prematurity (ROP), where an abnormal growth of blood vessels in the eye can lead to blindness and other vision problems. The results from the study showed a statistically significant (unlikely to be due to chance or coincidence) increase in blindness for the babies who received higher oxygen levels, and in death for babies who received lower levels.

Not surprisingly, the researchers have their defenders.  They claim that all of the oxygen levels received by babies in the study were within the standard range of treatment, and pointed out that, in fact, the babies in the study had a lower death rate than a supposedly similar group of premature infants.

The treatment of the patients and parents in the SUPPORT study is particularly disturbing, because it involves very vulnerable babies and parents who most likely would go to the ends of the earth to improve the outcome for their children.  Understandably, the researchers wanted to increase participation in their study–for which they needed the parents’ consent.  But however well intentioned the doctors were, there is no justification for making decisions based on random assignments rather than the best interests of each individual baby.  In this case, it is likely that the lack of information induced many parents to enroll their babies in the study when they would not otherwise have done so.

There is no question that medical research can lead to tremendous improvements in patient care and outcome.  But particularly in studies like SUPPORT, where the subjects are tiny premature babies, the institutions conducting such research must be vigilant to insure that their patients’ rights are protected.  It is likely that many of the study participants’ parents are still unaware of the harm their babies faced—or even actually suffered—as a result of their decision to participate.   It is never too late for the hospitals to explain to these parents what actually happened, and to try to atone for the breach of trust and, in some cases, physical damage, they have caused.

Read the letter to the UAB from OHRS here

Read Public Citizen’s letter to DHHS Secretary Kathleen Sebelius here

Read the original published report of the SUPPORT trial here


Waking Providers from Alarm Fatigue

heart monitorThe Joint Commission, an independent accrediting body for health care organizations, has just released a “Sentinel Event Alert” related to the on-going problem of hospital staff failing to respond to alarms on patient monitors.  Entitled “Medical Device Alarm Safety in Hospitals,” the bulletin is aimed at helping hospitals to institute safety procedures for the use of medical devices with alarms.

Monitoring technology has become ubiquitous in hospitals, starting with the fetal monitoring machines that monitor unborn babies’ heart rates during labor through heart and oxygen monitors that keep track of critically ill patients.  While these machines provide important information to health care providers, their widespread use has created a number of problems.

The most widely reported problem is so-called “alarm fatigue”–the phenomenon where busy providers, bombarded with multiple alarms, are slow to respond to the sound.  The reasons for this are many, ranging from understaffing, to a high number of false positives, where the machine alarm sounds when there is really no danger to the patient, to providers simply tuning out a sound that is a part of the normal environment.  Virtually anyone who has ever sat in an intensive care unit with a family member has witnessed delays or even failures in responding to machine alarms.  It can be terrifying to patients and families, and as the Joint Commission points out, it can even be life-threatening.

Because alarms are so frequent, particularly in intensive care settings, the Joint Commission notes that “clinicians may turn down the volume of the alarm, turn it off, or adjust the alarm settings outside the limits that are safe and appropriate for the patient – all of which can have serious, often fatal, consequences.”  The Commission suggests a series of steps that hospitals can use to insure that patient alarms are properly set so as to minimize false readings, and that providers are able to hear the alarms and respond in a timely fashion.

When a patient suffers injury or death in a hospital, alarm errors can be very difficult for families to identify, as medical records often do not record what monitors are being used, what parameters are set, whether and when an alarm sounded, and whether and when a provider responded to the alarm.  Some cases come to light when the hospital admits to the patient or family–usually following some sort of adverse event–that there was a problem with the monitoring, while others are uncovered during discovery in a lawsuit, when a health care provider admits in response to specific questions that a monitor was ignored or turned off.

The ability of patients to obtain data from malfunctioning or ignored monitors varies greatly.  Some monitors have no internal storage of data, while others save information only for a relatively short time.  Some types of monitoring records are saved by hospitals, but not considered part of a patient’s record, and must be specifically requested–often only after a lawsuit is filed.  This data, if available, often provides important insights into what happened during crucial times in a patient’s care.

Read more: The Boston Globe recently published an article discussing the risks to patients from “alarm fatigue.”


Doctor Fights Back

intimdating copPatient safety scored a major victory last week in Pennsylvania, when a federal court judge upheld a jury verdict against the American Academy of Orthopedic Surgeons (AAOS), the primary professional organization in the specialty, holding that the organization had unfairly damaged the reputation of Dr. Steven Graboff.

Dr. Graboff, a board certified orthopedic surgeon and a member of the AAOS, was one of the rare members of his specialty willing to review and testify for patients in medical malpractice cases.    The physician-defendant in a case in which Dr. Graboff was involved took offense, and filed a complaint against him with the AAOS disciplinary system.  After a couple of fairly brief hearings, the AAOS Board of Directors voted to suspend Dr. Graboff from the Academy for two years.  The AAOS published notice of the suspension in its monthly bulletin to members, and also posted the decision on its public website, where it was readily accessible through search engines such as Google.

As a result of the suspension, law firms that had previously used Dr. Graboff’s services as an expert witness told him that they could no longer hire him as a reviewer because of the suspension.  One firm even asked for a refund of monies already paid to Dr. Graboff for work he had performed before the suspension.  The economic loss was significant.

A Pennsylvania jury found that the AAOS had portrayed Dr. Graboff in a “false light,” by implying that he had made deliberately false statements in a “medical-legal report,” when in fact he had simply given a preliminary opinion to an attorney who had not supplied him with all the facts.  The jury awarded damages of nearly $200,000.

Dr. Graboff is to be commended for taking a stand against the intimidation tactics of professional organizations, some of which have been quite active in discouraging their members from testifying on behalf of injured patients in malpractice cases.  The AAOS system, for example, permits only fellow physicians to file grievances–so that a patient whose valid malpractice claim was defeated by false or misleading testimony from a defense expert would not be able to complain.

Juries are well able to listen to expert witnesses for both sides, and reach decisions on which testimony is worthy of belief.  Lawyers are well able to expose flaws in reasoning and methodology in expert testimony by vigorous cross-examination.   However, the integrity of the legal process depends on the willingness of qualified physicians to participate as advocates for patients who have been harmed by malpractice.  Without such physicians, the doors to the courthouse are shuttered to an injured patient.

The attempt by professional organizations to discipline members for having the audacity to testify against fellow physicians has a dangerous and chilling effect on doctors who might otherwise be willing to come forward on behalf of their patients.  The “conspiracy of silence,” which discourages physicians from speaking up against other physicians is strong enough without witnesses for patients having to face the added risk of professional disciplinary action for giving testimony that displeases the medical establishment.

While the playing field for patients can never be level, due to lack of access to information and continuing professional pressure on physicians, the Graboff court took an important step in helping to avoid making the situation any worse.

Read the full opinionin  Graboff v. Colleran here.


All in the Family?

DNA chainA Massachusetts Superior Court judge has ruled that he will review the school records for the sibling of a young man who suffered lead poisoning to see if they contain information that might tend to show a familial or genetic cause for the plaintiff’s cognitive and learning disabilities.  If the records contain pertinent information, the defense will be allowed access to the records, even though the sibling is not a party to the case.

The claim that a plaintiff’s medical condition has a hereditary basis is often raised by defendants in medical malpractice and other personal injury actions.  As yet, no Massachusetts appellate court has addressed the question of when or how the defendant may obtain copies of medical and other personal information related to another family member in order to support its contention.  However, defense lawyers commonly issue subpoenas for this type of material, ignoring the rights of the non-party family member.

The defendants in Sapienza v. Beaulieu sought an order requiring production of the plaintiff’s 10-year-old sibling’s school records, in order to determine whether there is evidence to support a genetic or familial cause for the plaintiff’s cognitive disabilities.  In support of their motion, the defendants submitted an affidavit from a neuropsychologist, who stated that review of the medical and educational records for other family members would be important to her conclusions about the cause of the plaintiff’s disability.

Last month, Superior Court Associate Justice Jeffrey Winik ruled on the defense motion, issuing a sensible order that is roughly modeled on procedures for obtaining non-party records in criminal cases.   The school has been directed to produce the records in a sealed envelope, which will be opened and reviewed by the judge.  If the judge determines that there is information pertaining to “attention deficit disorder, specific learning disabilities, such as speech delay, and mental illness,” he will appoint a guardian ad litem for the minor sibling, who will have an opportunity to argue why the records should not be produced to the defense.   If the judge then determines that the records should be produced, he will allow defense counsel and the expert to see them under strict safeguards.

Normally, someone who files a lawsuit alleging personal injury is considered to have waived any privilege or privacy rights to medical and other information related to that injury.  There is no automatic waiver, however, for family members or others who are not parties to the case.  Judge Winik’s opinion strikes a reasonable balance between the privacy rights of non-party family members, whose medical condition may arguably be relevant to the causation issues being litigated, and the defendants’ need for information to contest the claim of causation.  The detailed procedures instituted by the court recognize that other family members’ rights must be protected, and cannot be waived simply by a relative’s act of bringing a lawsuit.


More Costs to Bear?

money bagNext Tuesday, Elizabeth Mulvey of Crowe & Mulvey LLP will appear before the Massachusetts Supreme Judicial Court to fight a disturbing lower court ruling that has the potential to impose additional financial burdens of victims of medical malpractice and the lawyers who represent them.  In Faircloth v. Delillio, the mother of a severely brain damaged young girl brought suit against three health care providers who failed to notice that the amount of amniotic fluid in utero was dangerously low.  After finding that there was sufficient evidence as to two of the defendant providers, the tribunal found insufficient evidence against the doctor who actually looked at the ultrasound images.

In response to a perceived “medical malpractice crisis” nearly forty years ago, the Massachusetts legislature enacted General Laws, Chapter 231, Section 60B, establishing a pre-trial screening process intended to weed out “frivolous” medical malpractice cases.   The statute requires that all medical malpractice cases be presented to a panel consisting of a Superior Court judge, a lawyer, and a doctor, which will determine whether the case has sufficient merit to proceed to trial.  If the tribunal finds insufficient evidence, the plaintiff may pursue the case only by posting a $6,000 bond to pay the defendant’s costs in the event of a defense verdict at trial.

An important feature of the statute is a provision permitting the Superior Court to reduce the amount of the bond if the plaintiff is indigent and cannot afford the full $6,000.  This provision serves a crucial constitutional function by insuring that no one is deprived of access to the court because of an inability to pay.

However, in the Faircloth case, the Superior Court, while finding the plaintiff indigent, refused to reduce the amount of the bond, reasoning that the plaintiff’s attorney was advancing all other costs, and should be responsible for the bond as well.  Mulvey will argue that there is no legal authority to force counsel to pay for the bond, and that such a system would often create a conflict between the plaintiff and his counsel.  Further, such a rule would be unfair to plaintiffs whose lawyers were unwilling or unable to post the bond, perhaps even forcing them to change lawyers on short notice in the middle of a case.

 

Read the briefs filed by Crowe & Mulvey, LLP, the attorney for the doctor, and the Professional Liability Foundation, an organization of hospitals and malpractice insurers.


Medical Records Gone Digital

EMRVisitNoteNew regulations passed under the Health Insurance Portability and Accountability Act (HIPAA) will soon permit patients to request and receive their medical records electronically.  These regulations have the potential to help patients by reducing the cost of obtaining records, providing the records in a form that is more accessible, and perhaps even by allowing access to hidden information that patients don’t generally get without a fight.

45 CFR §164.524 will be effective as of March 25, 2013, but health care providers have until September 25, 2013 to comply.  The regulation requires that providers who maintain their patient records in electronic form must, on request by the patient, provide the records in an electronic format acceptable to the patient if the record is “readily producible” in that format, or, if not, in a different electronic format agreed to by the covered entity and the individual.  Instead of the usual per-page copying charges, the provider may charge a reasonable, cost-based fee, which may include the cost of the data device (CD-ROM or USB device), actual labor costs and postage.  However, the published interpretation from the U.S. Department of Health & Human Services states that that charge does not include non-labor-based retrieval fees or overhead costs for creating or maintaining electronic systems and equipment.

The regulatory comments suggest that in many cases, the patient will request records in Portable Document Format (pdf).  In most cases, the patient should request and the provider must provide, a searchable pdf file.  This will make record review much faster and easier.  In the alternative, patients may want to request a copy of the file in its “native” state, just as it is used in the hospital or office, although the software necessary to read this format may be proprietary and not readily available.

Although the issue of metadata is not specifically addressed in either the regulations or the comments, an argument can be made that the patient is entitled to receive the entire contents of the facility’s electronic file, including often invisible information about when and by whom entries were made, changed or even accessed.  If the timing of entries or who reviewed them will be an issue in a medical malpractice case, this information can be invaluable.  While it is usually obtainable through discovery, in many cases it would be advantageous to have it sooner rather than later.

Finally, the new regulations establish a fixed time limit of 30 days for the health care provider’s response to the patient’s request.  Unlike the old regulations, this period is not extended if the data is stored off-site.  Time spent negotiating with the patient about the format of the electronic response is chargeable against the 30 days.  The provider may request a one-time extension of 30 days, with written notice to the patient or other requestor about the reason for the delay and the expected date of completion.

Read the full text of the regulations and comments here.
 


Robot Wars

rockem robotsThe American Congress of Obstetricians & Gynecologists last week entered the ongoing discussion about the value of robotic surgery, releasing a statement by President James T. Breeden M.D., cautioning about the use of the robot for routine surgeries.

In a previous post, I have noted that the medical evidence does not show a clear benefit from the surgery, in which the surgeon uses a remote console to manipulate robotic arms inserted in the patient.  If it sounds like a video game, that’s exactly how some observers have described it.  The technology is expensive and has a significant learning curve, by some accounts requiring 100 surgeries or more to achieve proficiency.  Numerous complications, often attributed to operator inexperience, have been reported.

The statement from the leading professional organization of women’s health care physicians, noted that, although the robotic approach adds approximately $2000 to the cost of each surgery, “there is no good data proving that robotic hysterectomy is even as good as—let alone better—than existing, and far less costly, minimally invasive alternatives.”  Breedon suggested that established hysterectomy procedures–by vaginal or laparoscopic approach–are safer and cheaper, except perhaps for complicated cancer surgeries.

The robots, which are a significant source of income and prestige for some hospitals and surgeons, quickly fired back.  A group of approximately 30 surgeons issued a rebuttal statement, claiming that the advent of robotic technology “has allowed us to extend a level of quality surgical care to our patients that is exceptionally more diverse and complete than was ever possible with traditional methods of surgery.”  The group was sharply critical of ACOG’s “failure… to embrace the education of Minimally Invasive Surgery.”

Not surprisingly, Intuitive Surgical, the manufacturer of the daVinci robot, wasn’t too pleased either.  The company issued its own statement, claiming that its machine “helps surgeons overcome the limitations of traditional MIS [minimally invasive surgery] techniques to provide patients with a less invasive option and prevent the downstream costs and complications of an open procedure.”  However, the company did acknowledge that the robot wasn’t suitable for all patients or all procedures.

Obviously, both sides have some talking points.  For one surgeon’s assessment of the pros and cons of robot surgery, see here.  What we know as lawyers is that there are a lot of patients out there who were attracted by promises of less pain and faster recovery, but who got exactly the opposite of what they bargained for.


Debunking Defensive Medicine

bitter pill coverIn my last post, I summarized the recent Time Magazine article by Steven Brill, which exposed the rampant abuse and overcharging that drive up health costs beyond the means of many ordinary people–even those with health insurance.  Brill demonstrated how “non-profit” hospitals often generate stunning profits by marking up the cost of both common and specialty medical supplies and by billing separately for items most people would assume are included within other charges.

Although not cited as a main force behind soaring medical costs, Brill does mention the role of so-called defensive medicine, the practice of ordering tests or treatments based on fear of a malpractice suit rather than good medical practice.  While Brill acknowledges that other factors–including personal profit motives–may prompt doctors to order “unnecessary” tests or treatments, he also assumes that some doctors do treat patients with one eye on their possible malpractice liability, ordering tests for fear that they will be sued if they don’t do so.

Brill’s proposed solution to the problem of defensive medicine is one that has been around for a while.  He suggests that doctors would order fewer unnecessary tests if they knew that they could not be held liable as long as they followed established professional standards for diagnosing a particular condition.

There are two main problems with Brill’s solution, which, if properly implemented, in theory would have the potential to help patients by insuring that more people get appropriate care.  One is the obvious problem of how the “established” standards are set—and by whom.  If physician organizations are permitted to set artificially low standards, patients will suffer.

But the other problem is that physician groups have fought valiantly—and for the most part successfully—against the establishment of this type of standards.  Unfortunately, the medical groups’ opposition is not based on any concern that patients may be harmed by standards that are set too low.  Rather, the opposition from physicians is motivated by pure self-interest: they are afraid that if there are clear universal standards, they will have absolutely no defense if they don’t follow the standards!

Because a favorite defense technique is confusion.  Malpractice defendants love to argue that medicine is an art, not a science, that medicine is not practiced from a “cookbook” that gives the proper treatment in each  given situation, and that practicing medicine requires doctors to “exercise their judgment.”  Imagine what would happen to this defense if there was a clear, unambiguous professional standard that required certain actions in a given situation. Rather than protecting the doctor from liability, that unambiguous standard would provide the injured plaintiff with precisely the proof of negligence that he needs.