In a medical negligence claim, courts must consider whether a doctor acted in accordance with the required standard of care. Experts may disagree on what should have been done, particularly in light of knowledge that a patient has been harmed. In Australia, the law gives further guidance on the standard of care, providing that doctors will not have breached their duty if they acted in a manner that, at the time the service was provided, was widely accepted by peer professional opinion as competent professional practice.
The aim of this paper is to provide guidance to doctors on how practice in accordance with college, hospital or other accepted professional guidelines is likely to be viewed by a court in the event of a professional negligence claim.
In two recent cases, courts in different states have considered the role of professional guidelines in establishing what was widely accepted as competent professional practice.

The new American College of Obstetricians and Gynecologists\' (ACOG) monitoring guidelines introduce a new category of interpretation of fetal heart rate tracings between reassuring and nonreassuring, namely intermediate. The purpose is to reduce unnecessary cesarean deliveries. The legal role of medical guidelines is ambivalent. Providers are expected to be familiar with such guidelines, but also to exercise clinical judgment in their patients\' interests. Practice departing from guidelines requires justification, but simple compliance without regard to patients\' circumstances may constitute negligence. Some courts defer to medical professional guidelines, but others hold that professional standards are set as a matter of law, not by the profession itself. Unlike conclusions in medical science, which are open to continuing review, courts determine facts in a case only once, at trial. Litigation to compel patients\' compliance with medical advice based on guidelines may fail, as may prosecutions, more common in the US, of patients who defy such advice.

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This article examines the legal status of \"soft law\" in the fields of medicine and medical research. Many areas of clinical practice and research involve complex and rapidly changing issues for which the law provides no guidance. Instead, guidance for physicians and researchers comes from what has often been called \"soft law\"--non-legislative, non-regulatory sources, such as ethics policy statements, codes, and guidelines from professional or quasi-governmental bodies. This article traces the evolution of these \"soft law\" instruments: how they are created, how they are adopted within the professional community, and how they become accepted by the courts. It studies the relationship between soft law instruments and the courts. It includes an examination of the approaches to judicial analysis used by the courts in theory and in practice. The authors then examine the jurisprudence to see how courts will adopt professional norms as the legal standard of care in some circumstances and not others. They consider the legal concerns and ethical issues surrounding the weight attached to professional practices and norms in law. The authors demonstrate how practices and policies that guide professional conduct may ultimately bear weight as norms recognizable and enforceable within the legal sphere.

A limited amount of research exists examining the ability of clinical or intuitive adjustments of formalistic methods of decision-making to improve upon predictive accuracy beyond that of the original measure. Using receiver operator characteristic (ROC) curves and the departure decisions of federal judges, the recidivism predictive utilities of two measures were compared. The two measures were the Criminal History category, based on the Federal Sentencing Guidelines (a formalistic procedure), and a re-coded measure of criminal history derived from the sentences actually imposed by judges after they departed from the Guidelines upwards or downwards for recidivism reasons (an adjustment to the formalistic procedure). Both a 10 year post-sentencing recidivism follow-up and a 6 year uniform follow-up period suggested that the Criminal History category performed poorly in predicting recidivism for this offender population, and that judicial departures not only failed to improve, but actually worsened, the predictive accuracy of pre-departure judgments. Policy implications of the findings are discussed.

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