Medical standards in 21 states based on local rule, not national standards

Although most patients don't know it, 21 U.S. states follow some form of an 1880 ruling that says the standard of care physicians must meet by law depends on where the doctor practices, even if, in some cases, it is a small town with only two doctors.

That means what is considered malpractice in some states may be considered acceptable practice in others, say researchers at Georgetown University Medical Center and Johns Hopkins Berman Institute of Bioethics.

This "Locality rule" can negatively impact both physicians and patients, and should be changed to the national, evidence-based standards of care that the 29 other states and the District of Columbia have now adopted as the basis for malpractice law, the researchers say in the June 20 issue of the Journal of the American Medical Association (JAMA).

"Whereas this rule protected rural physicians in the 1800s who didn't have access to the kind of medicine available in larger cities, it now works to create uncertainty for physicians, especially those who practice in more than one legal jurisdiction, which can translate to less than adequate patient care," says the study's lead author, Michelle Huckaby Lewis, M.D., J.D., a Greenwall Fellow at Johns Hopkins University and Georgetown University.

"We now live in an age where all physicians have the same opportunities to stay current, at least as far as medical education is concerned, so the standards by which physicians should be measured should be the same throughout the country and must not depend on where the physicians practice," she says.

The authors suggest that in states where medical resources are an issue, a resource-based national standard of care can be adopted, as some states have done. For example, some advanced screening technologies used in many states may simply not be available in others, so a resource-based standard would take that into account, they say.

"This issue hurts patients who may want a cutting edge treatment and physicians who want to practice evidenced-based medicine, and not be limited by what other doctors in their communities are doing, " says the study's senior author, Dan Merenstein, M.D., assistant professor in the Department of Family Medicine at Georgetown University Medical Center.

"Let's say there is a new drug that has been proven in many studies and has been endorsed by expert groups as the best to treat Parkinson's disease," he says. "Well, if I am seeing a patient in Maryland on Monday I should be comfortable using this medicine as this state uses national standards. But if I am treating a patient on Wednesday in Virginia, which uses locality rule, I may need to think twice, especially if I sense that most doctors in Virginia don't yet use the drug.

"As all drugs have potential adverse events and if something happens, per Virginia law I would not have been following the standard of care," Merenstein says. "So I may be forced to use a drug that is less beneficial for patients."

The locality rule is interpreted in different ways by different states, the authors say. In Virginia, for example, all physicians are expected to meet one state-wide standard, which is often unspecified, but in some states, locality rules are based on small regions or townships.

And in some states, the reason the locality rule remains as a legal standard is because it minimizes malpractice liability and so is supported by either physician groups or lawyers who represent physicians, Lewis says. "Medical malpractice attorneys are very aware of these locality rules," she says.

"This can help physicians because it requires patients who file malpractice suits to find expert witnesses who also are familiar with that local standard of care," she says. "But I have seen a lot of cases of malpractice thrown out because it is often difficult to find physicians in the same community who will serve as expert witnesses against a fellow doctor.

"But this has become a double-edged sword for many physicians, because it can inhibit the adaptation of scientific advancement, and means that some doctors who want to practice the best evidence-based medicine are at risk if they do so," Lewis says.