Chapter 1: The early usage of clinical guidelines in medical negligence litigation: an Anglo-American perspective
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This chapter considers the development of evidence-based medicine in the UK around the start of the millennium and the ensuing production of evidence-based clinical guidelines. The inception of guidelines as a lever for the legal standard of care in clinical negligence in the UK occurred at a time of change through socio-political drivers, such as the National Institute of Health and Clinical Excellence, regulators for healthcare, and the Government agenda for imposing a statutory duty of quality on the National Health Service. Production and dissemination of clinical guidelines had been gathering momentum in the UK around the end of the 1990s and had been used primarily in clinical settings to a degree. However, in US medical malpractice litigation they had been deployed for at least twenty years previously used either as a 'shield' as a defence against liability or as a 'sword' against defendants for either following or deviating from established guidance. Data from the authors' empirical research is presented, along with a comparison of the use of guidelines within US case law litigation. The chapter provide an interesting backdrop for demonstrating how guidelines in litigation started in the UK and how this this has developed over nearly two decades, especially as the research data indicated that there was an expectation amongst solicitors and barristers that the usage of guidelines in medical negligence litigation would increase in the future.

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