Definition of champagne tap

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Well the premise of most decision scores IS that there is an acceptable miss rate. There HAS to be an acceptable miss rate, or all “misses” would be instant losses in court.

Not saying that you somehow pull up every chest pain you saw, and demonstrate your 99% accuracy. You show that your career the standard, and the standard isn’t 100% accurate…
 
Janders said:
Well the premise of most decision scores IS that there is an acceptable miss rate. There HAS to be an acceptable miss rate, or all “misses” would be instant losses in court.

Not saying that you somehow pull up every chest pain you saw, and demonstrate your 99% accuracy. You show that your career the standard, and the standard isn’t 100% accurate…
Click to expand...

Why some cases are wins or losses for the defense may have more to do with very specific facts and details of the particular case (not even necessarily just medical details, but things like how compelling the plaintiff is).

Even for cases that go like the textbooks say the will, the courts rely on expert testimony to determine what the standard of care was (similar physician, similar circumstances). Saying that there is an "acceptable miss rate" implies that one is using population level risk to excuse individual harm, which is just not commonly done. Now, an expert may be essentially using that logic to say that not doing a test/procedure on a patient met the standard of care because of a guideline (which in turn may be using population level concerns like that), which may sound the same, but it really isn't: it's the expert saying they would have done the same in that situation. Arguably, if miss rates were societally accepted, we would not even need expert witnesses to make that argument. We would just need to show the denominator (all the cases we did not miss) and the numerator (this and any other cases we had missed) and show that the rate is lower than this allegedly accepted miss rate. But we don't. Because there is no accepted miss rate. I wish there was. There is clinically. I don't think there is medico legally though.
 
I asked Perplexity.ai the following question (a terribly worded question I admit!):

"can a doctor use an "acceptable miss rate" as a defense in court for malpractice and if it has happened in the past is it defensible"



Answer:

"Can a Doctor Use an "Acceptable Miss Rate" as a Defense in Malpractice Cases?

The Legal Standard: "Standard of Care"​

  • In medical malpractice cases, the central legal question is whether the doctor met the standard of care—the level of care that a reasonably competent medical professional would provide under similar circumstances123.
  • Courts do not require perfection from doctors. An error or a missed diagnosis is not automatically malpractice if it falls within what is considered reasonable for the profession412.

"Acceptable Miss Rate" as a Defense​

  • The concept of an "acceptable miss rate" refers to the reality that, even with reasonable care, some diagnoses or conditions may be missed due to the limitations of medical science and human judgment.
  • In court, a doctor (and their defense team) may argue that a missed diagnosis or error was within the acceptable range for competent practitioners in that specialty, and therefore did not breach the standard of care456.
  • This defense is typically supported by expert testimony and reference to published guidelines, studies, or consensus statements that define what is considered an acceptable error or miss rate in the field462.

Has This Defense Been Used and Is It Defensible?​

  • Yes, this defense has been used. Courts have recognized that not all errors constitute negligence. Several court decisions have stated that a doctor is not liable for an honest mistake or error in judgment if their actions were consistent with what a reasonable physician would have done478.
  • For example, in radiology and emergency medicine, published literature and expert consensus sometimes acknowledge a certain percentage of missed findings as "acceptable" given the complexity of cases46.
  • The defense is defensible if:
    • The miss rate cited is widely accepted in the medical community.
    • The doctor’s actions were consistent with how other competent practitioners would have acted.
    • There is no evidence of gross negligence or deviation from established protocols452.

Limitations and Considerations​

  • The "acceptable miss rate" defense is not absolute. If the missed diagnosis or error was due to a clear deviation from standard protocols, lack of reasonable diligence, or gross negligence, the defense will likely fail578.
  • The standard of care is ultimately determined by the court, often with input from expert witnesses, and may evolve over time as medical knowledge and practices change92.

Summary Table: Use of "Acceptable Miss Rate" in Malpractice Defense​

AspectExplanation
Legal BasisStandard of care: what a reasonable doctor would do
Use in CourtDefense may argue error was within accepted miss rate for the specialty
Support NeededExpert testimony, published guidelines, consensus statements
Court PrecedentCourts have accepted this defense if actions align with reasonable medical practice
LimitationsNot a defense for gross negligence or clear deviation from protocols

Key Takeaways​

  • Doctors can and do use "acceptable miss rate" as a defense in malpractice cases, arguing that not all errors are negligent if they fall within the bounds of reasonable medical practice.
  • Courts have found this defense valid when supported by expert evidence and when the doctor's actions align with accepted standards in the field452.
  • The defense is not absolute and will not protect against clear negligence or failure to follow established protocols.
In summary: The "acceptable miss rate" is a recognized and defensible argument in medical malpractice cases, provided it is grounded in accepted medical standards and supported by expert testimony452.
  1. Standard of Care - FindLaw
  2. Understanding the "Standard of Care" in Medical Malpractice Claims
  3. The Standard of Care - PMC
  4. https://ajronline.org/doi/10.2214/AJR.07.2209
  5. What Are the Most Common Defenses to Medical Malpractice Cases?
  6. https://weathington.com/wp-content/uploads/2019/03/ED-Legal-Letter-March-2019.pdf
  7. Misdiagnosis, Failure to Diagnose & Related Legal Claims
  8. Failing To Exercise The Standard Of Care Resulting In Medical Malpractice In Maryland | Gilman & Bedigian
  9. Effective Strategies for Defending Patients in Medical Malpractice Cases - RightPatient
  10. Radiology Malpractice Lawsuits and Settlements
  11. Twenty Years of Evidence on the Outcomes of Malpractice Claims - PMC
  12. Calculating Medical Malpractice Settlement Damages - Knowles Group
  13. Three Cases of Emergency Department Medical Malpractice Involving “Consultations”: How Is Liability Legally Determined? - PMC
  14. Malpractice in Radiology: What Should You Worry About? - PMC
  15. Understanding Medical Malpractice: Key Insights From Active Precedent
  16. Association of physician malpractice claims rates with admissions for low-risk chest pain - PMC
  17. Medical Misdiagnosis & Failure to Diagnosis - Brown & Crouppen Law Firm
  18. Charting Practices to Protect Against Malpractice: Case Reviews and Learning Points - PMC
  19. Medical Liability/Medical Malpractice Laws
  20. Average Medical Malpractice Settlement in California (2024 Updated Data) - LawLinq
  21. Ethical Malpractice | Published in Houston Law Review
  22. Elements of Malpractice | Free Case Evaluation | Ben Crump Law
  23. https://westjem.com/articles/malpra...care-and-a-legal-concept-special-defense.html
  24. https://www.kannlawoffice.com/medical-malpractice-law
  25. https://hrlr.law.columbia.edu/hrlr-...-defense-to-inadequate-police-investigations/
  26. https://pmc.ncbi.nlm.nih.gov/articles/PMC2672275/
  27. https://supreme.justia.com/cases/federal/us/466/668/
  28. https://academic.oup.com/ojls/article/41/4/873/6161245
  29. https://fasigbrooks.com/blog/plaintiff-vs-defense-doctor-who-should-you-belie/
  30. https://harvardlawreview.org/print/...-parry-of-stare-decisis-in-the-roberts-court/
  31. https://courtroom5.com/blog/affirmative-defenses-and-how-to-assert-them/
  32. https://qualitysafety.bmj.com/content/33/2/109
  33. https://selfhelp.courts.ca.gov/debt-lawsuits/respond/defenses
  34. https://www.schwartzandschwartz.com/defense-medical-examinations-in-personal-injury-lawsuits/
  35. https://www.expertinstitute.com/resources/insights/standard-care-medical-malpractice-need-know/
  36. https://library.nclc.org/article/15-blunders-seeking-attorney-fee-award
  37. https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=2663&context=lawreview
 
thegenius said:
I asked Perplexity.ai the following question (a terribly worded question I admit!):

"can a doctor use an "acceptable miss rate" as a defense in court for malpractice and if it has happened in the past is it defensible"



Answer:

"Can a Doctor Use an "Acceptable Miss Rate" as a Defense in Malpractice Cases?

The Legal Standard: "Standard of Care"​

  • In medical malpractice cases, the central legal question is whether the doctor met the standard of care—the level of care that a reasonably competent medical professional would provide under similar circumstances123.
  • Courts do not require perfection from doctors. An error or a missed diagnosis is not automatically malpractice if it falls within what is considered reasonable for the profession412.

"Acceptable Miss Rate" as a Defense​

  • The concept of an "acceptable miss rate" refers to the reality that, even with reasonable care, some diagnoses or conditions may be missed due to the limitations of medical science and human judgment.
  • In court, a doctor (and their defense team) may argue that a missed diagnosis or error was within the acceptable range for competent practitioners in that specialty, and therefore did not breach the standard of care456.
  • This defense is typically supported by expert testimony and reference to published guidelines, studies, or consensus statements that define what is considered an acceptable error or miss rate in the field462.

Has This Defense Been Used and Is It Defensible?​

  • Yes, this defense has been used. Courts have recognized that not all errors constitute negligence. Several court decisions have stated that a doctor is not liable for an honest mistake or error in judgment if their actions were consistent with what a reasonable physician would have done478.
  • For example, in radiology and emergency medicine, published literature and expert consensus sometimes acknowledge a certain percentage of missed findings as "acceptable" given the complexity of cases46.
  • The defense is defensibleif:
    • The miss rate cited is widely accepted in the medical community.
    • The doctor’s actions were consistent with how other competent practitioners would have acted.
    • There is no evidence of gross negligence or deviation from established protocols452.

Limitations and Considerations​

  • The "acceptable miss rate" defense is not absolute. If the missed diagnosis or error was due to a clear deviation from standard protocols, lack of reasonable diligence, or gross negligence, the defense will likely fail578.
  • The standard of care is ultimately determined by the court, often with input from expert witnesses, and may evolve over time as medical knowledge and practices change92.

Summary Table: Use of "Acceptable Miss Rate" in Malpractice Defense​

AspectExplanation
Legal BasisStandard of care: what a reasonable doctor would do
Use in CourtDefense may argue error was within accepted miss rate for the specialty
Support NeededExpert testimony, published guidelines, consensus statements
Court PrecedentCourts have accepted this defense if actions align with reasonable medical practice
LimitationsNot a defense for gross negligence or clear deviation from protocols

Key Takeaways​

  • Doctors can and do use "acceptable miss rate" as a defense in malpractice cases, arguing that not all errors are negligent if they fall within the bounds of reasonable medical practice.
  • Courts have found this defense valid when supported by expert evidence and when the doctor's actions align with accepted standards in the field452.
  • The defense is not absolute and will not protect against clear negligence or failure to follow established protocols.
In summary: The "acceptable miss rate" is a recognized and defensible argument in medical malpractice cases, provided it is grounded in accepted medical standards and supported by expert testimony452.
  1. Standard of Care - FindLaw
  2. Understanding the "Standard of Care" in Medical Malpractice Claims
  3. The Standard of Care - PMC
  4. https://ajronline.org/doi/10.2214/AJR.07.2209
  5. What Are the Most Common Defenses to Medical Malpractice Cases?
  6. https://weathington.com/wp-content/uploads/2019/03/ED-Legal-Letter-March-2019.pdf
  7. Misdiagnosis, Failure to Diagnose & Related Legal Claims
  8. Failing To Exercise The Standard Of Care Resulting In Medical Malpractice In Maryland | Gilman & Bedigian
  9. Effective Strategies for Defending Patients in Medical Malpractice Cases - RightPatient
  10. Radiology Malpractice Lawsuits and Settlements
  11. Twenty Years of Evidence on the Outcomes of Malpractice Claims - PMC
  12. Calculating Medical Malpractice Settlement Damages - Knowles Group
  13. Three Cases of Emergency Department Medical Malpractice Involving “Consultations”: How Is Liability Legally Determined? - PMC
  14. Malpractice in Radiology: What Should You Worry About? - PMC
  15. Understanding Medical Malpractice: Key Insights From Active Precedent
  16. Association of physician malpractice claims rates with admissions for low-risk chest pain - PMC
  17. Medical Misdiagnosis & Failure to Diagnosis - Brown & Crouppen Law Firm
  18. Charting Practices to Protect Against Malpractice: Case Reviews and Learning Points - PMC
  19. Medical Liability/Medical Malpractice Laws
  20. Average Medical Malpractice Settlement in California (2024 Updated Data) - LawLinq
  21. Ethical Malpractice | Published in Houston Law Review
  22. Elements of Malpractice | Free Case Evaluation | Ben Crump Law
  23. Malpractice Cases in Wound Care and a Legal Concept: Special Defense - The Western Journal of Emergency Medicine
  24. Medical Malpractice Attorney | Kann California Defense Group
  25. When Police Mess Up: The Lack of a Defense to Inadequate Police Investigations – Columbia Human Rights Law Review
  26. Malpractice Cases in Wound Care and a Legal Concept: Special Defense - PMC
  27. Strickland v. Washington, 466 U.S. 668 (1984)
  28. https://academic.oup.com/ojls/article/41/4/873/6161245
  29. Plaintiff vs Defense Drs.: Who to Believe in a PI Case - Fasig | Brooks
  30. The Thrust and Parry of Stare Decisis in the Roberts Court - Harvard Law Review
  31. 31 Affirmative Defenses and How To Assert Them
  32. Burden of serious harms from diagnostic error in the USA | BMJ Quality & Safety
  33. List of debt defenses | California Courts | Self Help Guide
  34. Defense Medical Examinations in Personal Injury Lawsuits | Schwartz & Schwartz
  35. The Standard of Care for Medical Malpractice
  36. 15 Blunders in Seeking an Attorney Fee Award | NCLC Digital Library
  37. https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=2663&context=lawreview
Click to expand...
The growing trend on SDN of "let me copy and paste this huge answer I got from a question I put into AI" is really annoying.
 
BoardingDoc said:
The growing trend on SDN of "let me copy and paste this huge answer I got from a question I put into AI" is really annoying.
Click to expand...
99.9% agree. This one time the AI block quote supported my line of reasoning and it was only slightly annoying!
 
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