When physicians use or adopt the term \u201cstandard of care\u201d in the context of a medical negligence case, they unwittingly play into the hands of the plaintiff\u2019s attorney and undermine the defense. Unfortunately, the term \u201cstandard of care\u201d implies by its singular grammatical nature that there is only one way to approach a medical problem.\u00a0 As we all know, this is usually completely inaccurate.\u00a0 Use and adoption of this term sets a very high and unrealistic bar for physician conduct and does not adequately describe the concept of negligence.<\/p>\n
Medical liability lawsuits are typically based on the premise that the physician was negligent. Negligence is typically defined as the physician\u2019s failure to have acted in a prospectively reasonable way. In other words, a physician is negligent when the physician does something that no reasonable physician would do, or fails to do something that all reasonable physicians would do under similar circumstances at the time in question and when viewed prospectively.<\/p>\n
Defining the concepts<\/strong><\/p>\n The laws of almost every state provide that a physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient. In most states, if a physician exercises reasonable medical judgment in choosing among a broad spectrum of available treatment choices, the physician\u2019s decision, even if it results in a bad or catastrophic outcome, does not necessarily mean that the physician was negligent.\u00a0 If a physician uses prospectively reasonable and ordinary care, then the physician is not negligent.<\/p>\n The concepts of \u201cmalpractice\u201d and \u201cstandard of care,\u201d are merged into the term \u201cnegligence.\u201d The term \u201cnegligence\u201d is typically well-defined by the judge who reads the definition of negligence in instructions that are read to the jury. Judges will typically not define or read any definitions for \u201cmalpractice\u201d or \u201cstandard of care.\u201d The concept that is universally presented to juries in the United States is whether the physician was negligent.\u00a0 Therefore, allowing the plaintiff attorney to use the term \u201cstandard of care\u201d in depositions and at trial is potentially confusing to the jury and the physician.<\/p>\n The concept of \u201cmedical judgment\u201d is pivotal in the assessment of whether the physician was negligent.\u00a0 If a jury believes that the physician exercised prospectively reasonable medical judgment then the physician typically wins. In preparing my clients for deposition, I tell them that I am an excellent reader. If I were to spend two months reading and re-reading a medical text, such as\u00a0Campbell\u2019s Operative Orthopedics,<\/em>\u00a0and I committed the entire text to memory, would that qualify me to practice orthopaedic surgery? \u00a0\u201cOf course not,\u201d my clients reply. Well, why not? Because medical judgment is based not only on reading medical literature, but also on years of education, training, and experience gained in practicing medicine.<\/p>\n Tripping over words<\/strong><\/p>\n The following example highlights how these concepts may be used in court. In a case that involves an infection after joint replacement, a plaintiff\u2019s attorney may ask the orthopaedist, \u201cDoctor, is it your personal standard of care to have a joint infection lead to amputation after joint replacement surgery?\u201d The orthopedist would typically reply, \u201cOf course not!\u201d Thus, the jury is fooled into thinking that because this infection led to amputation, the physician is negligent.<\/p>\n The orthopedist could be found liable in such a case, based on this verbal sleight of hand. In fact, if standard precautions to avoid infection had been used, and no breach in sterile technique occurred, the infection and subsequent amputation were not necessarily the result of any negligence. The question that should have been posed is, \u201cDoes the occurrence of a joint infection necessarily mean that the orthopaedist was negligent?\u201d<\/p>\n Although medicine is practiced prospectively, it is easily questioned retrospectively in peer review and lawsuits. When presenting a physician client\u2019s case to an expert, I frequently call the expert and ask for a half hour of time. I do not describe the case so as to not prejudice the expert\u2019s consideration. I present the case, including the medical records and radiographs, to the expert in as prospective a manner as possible. In a recent case, I presented the case to the chief of the emergency service and then had him present the case and radiographs to other emergency physicians in the physicians\u2019 call room out of my presence. This presentation attempts to assess medicine as it is actually being practiced and to try to avoid hindsight bias. Such prospective presentation also provides a favorable talking point when the case is presented to the jury.<\/p>\n In my opinion, the term standard of care should be avoided at all costs due to its ability to misstate the concept of negligence and to fool the jury. If a physician uses prospectively reasonable medical judgment under the circumstances at the time, then he or she should not be held liable for any claims of negligence.<\/p>\n For more information, contact\u00a0Robinson, Waters and O\u2019Dorisio<\/a>.<\/p>\n Brian G. McConaty, Esq., practices civil trial law, with an emphasis on medical liability defense<\/a>, health law, and\u00a0civil\/commercial litigation<\/a><\/em>.\u00a0He prepared this article at the request of the AAOS Medical Liability Committee. He can be reached at\u00a0<\/em>bmcconaty@rwolaw.com<\/em><\/a><\/p>\n","protected":false},"excerpt":{"rendered":" When physicians use or adopt the term \u201cstandard of care\u201d in the context of a medical negligence case, they unwittingly play into the hands of the plaintiff\u2019s attorney and undermine the defense. Unfortunately, the term \u201cstandard of care\u201d implies by its singular grammatical nature that there is only one way to approach a medical problem.\u00a0 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[83],"tags":[],"acf":[],"_links":{"self":[{"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/posts\/1861"}],"collection":[{"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/comments?post=1861"}],"version-history":[{"count":3,"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/posts\/1861\/revisions"}],"predecessor-version":[{"id":2627,"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/posts\/1861\/revisions\/2627"}],"wp:attachment":[{"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/media?parent=1861"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/categories?post=1861"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rwolaw.com\/wp-json\/wp\/v2\/tags?post=1861"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}