Today we are joined by Dr. MedLaw. She discusses the complexities of the “standard of care” in medical malpractice cases. Dr. MedLaw explains that while the standard is meant to reflect what is recognized as acceptable and appropriate medical practice, it must also consider the specific circumstances, location, and the evolving nature of medical knowledge, allowing for some flexibility and acknowledging the role of medical judgment.

Dr. MedLaw?

Hi, this is Dr. MedLaw. I’m a board-certified radiologist and I’m also a plaintiff’s medical malpractice attorney. All right, so if you’re like most doctors, you’ve probably taken one of those courses that docs a few points off your malpractice premium. And you’ve heard standard of care used glibly as though it was this fixed point that you should be aiming at. But then you walk out of the classroom or you click off your monitor and you’ve probably thought to yourself, wait a minute, doctors can be practicing in really different locations. And medicine itself, it’s changing under our feet. How can all this really be pinned down enough in a malpractice case to declare that this doctor was negligent as a legal certainty? Am I supposed to follow some cookbook just to protect myself? And where’s the opening for different ideas? Ideas that might be excellent and innovative?

If standard of care is this banner, everybody must just march under. And the usual answer to those concerns is that hey, both sides can introduce expert testimony as to the level of care that should have been met in the case. And then if you respond that well, that can just double the issues. You’d have a point. Alright, so let’s talk about this. Now is the standard of care fair? Alright, let’s start with what we all know. To win. The plaintiff must show that the treatment that they received was negligent. And that’s a term that legally means that it fell below the standard of care. So then we go to the legal definition of the standard of care, and that’s generally, and I’m doing air quotes now, what is recognized as acceptable and appropriate by reasonably prudent similar physicians in testimony, it’s usually referred to as good and accepted medical practice.

But let’s turn it into a more explanatory term. It’s doing what is reasonable under the actual circumstances. Now, plaintiff’s carry the burden of proof and a plaintiff’s case will therefore rest on establishing that this didn’t happen in the course of their care. That reasonability at that time and in that place and in under the conditions when that care was carried out, while the defense will be that the doctor actually acted as they reasonably should have under those conditions. So let’s look at how the doctor’s conduct will be evaluated. You start with specialty, that’s straightforward. A defendant doctor should only be judged by the practices within their own specialty or one that they voluntarily took on like a family practitioner who removes a skin lesion rather than referring to a dermatologist. Alright, that’s basic fairness. So this then takes us to the expert witness who’ll be explaining what is accepted as the standard of care in that area of medicine to the jury.

The expert will also likely be in that specialty. It used to be the idea that doctors just will generally knowledgeable in medicine. Well, that’s gone. Many states have made it a requirement that the expert should be in the same specialty or even the subspecialty as the defendant doctor. For example, there was a case where an adult oncologist was barred from being an expert in a pediatric oncology case. Well, to be frank, a lot of this was due to pressure from insurers and the defense bar because they really wanted to reduce the available pool of experts for the plaintiffs, particularly in high value cases and subspecialties. But it is consistent with medicine as its practice now, and it does legitimately go to fairness. So we have a starting point of an expert who’s probably lined up with the defendant. The next issue is, as the realtors say, location, location, location.

Back in again, the before times when medical education was not yet standardized and specialty boards had not yet put in the systematic certification. Doctors in very different areas had very disparate backgrounds and skills in the original rules on standard of care reflected that. And so only what was done in the local community mattered to establish what should have been done. But again, that’s not modern medicine. Medical training and certification are systematic now, and there’s online CME and there’s telemedicine. So a doctor who is in a more rural area can still get in touch. So now most jurisdictions have gone to a nationalized standard. And what this means, and again, doing the air quotes, the doctor must have the ordinary skill learning and experience of the profession generally and must exercise the care and skill of the average qualified practitioner. But again, let’s be real about this.

A small town solo doctor’s, remote access by computer to a specialist in a city 150 miles away is really not the same as practicing in the integrated setting at that specialist’s cutting edge hospital. So the way that this gets smoothed out again as to fairness is that all doctors are expected to have the same level of training and the same judgment, the same reasonableness and discretion and diligence. But we also take the actual limits that they’re under where they practice into account. So what really gets looked at is how they carried out their duty to their patient under those limitations. So if a small community hospital doesn’t have the capacity to do emergency neurosurgery, any ER physician there is still responsible for knowing that it’s needed and for activating a process to get it done elsewhere. A doctor at a free clinic is responsible for recognized when their patient ideally needs a breast MRI and for attempting to get it covered.

But if they just can’t, then they should at least use appropriate skill and knowledge and use alternate modalities like tomography or ultrasound to try to reach an accurate diagnosis. So what this really means is a lack of the best facilities is not an excuse for failing to meet the standard of care. So the doctor can just shrug and stop. But if the doctor does the best that they can under limited circumstances, well that’s fairly going to be their defense. Alright, but how about when the doctor deliberately acts in a way that’s not consistent with the applicable standard because they actually believe that the alternative is clinically correct. The answer there is, Hey, the standard of care is not a popularity contest. Courts recognize what’s called air quotes. Again, the respectable minority rule. This allows the defendant doctor to show through their expert through the literature, through their own experience that the course of care that they followed is one that a non insignificant proportion of practitioners use.

It’s not something they pulled out of their hat. There’s proven clinical grounding for it that some reasonable doctors do follow even though another approach is dominant in the field. So what this means is that as methodology is changing in a field, the standard of care can accommodate multiple options. But remember reasonability under the circumstances, that’s still the watch word. So for example, back when hydroxychloroquine and ivermectin were being considered for covid, it would not have been negligent to use them because a respectable minority of doctors did. But now that they’ve been disproven, the fact that some fringe practitioners still believe in them does not provide that defense. But on the other hand, proning patients with covid pneumonia began as a minority approach and now it’s widely accepted. The one thing that’s never going to be the standard of care, though by definition because it’s not yet accepted by anyone because it’s still in development, is research.

So maybe the standard of care in the future, but not now. And finally, there’s this indefinable aspect of medical judgment. Doctors just know is there, and courts actually acknowledge that. They accept that although medicine has to have formalized standards for practice, hey, it’s about science, that regions of art exist, and it will then be the job of the defense expert to explain how this impacted the case in a way that these cold excerpts from a text or statistics really can’t. And to bring the doctors thinking their medical judgment within the standard of care beyond these static limits. Okay, so where do we land on this? What we can say about the fairness of the defining requirement in a process that doctors frankly don’t understand is that it actually is fair. The scope of the standard of care and how it’s implemented in what is it an adversarial process, it’s actually a bridge between objective requirements and the practical reality. The medical treatment has to be flexible and that’s fair. Great to be here.