How do you know if a doctor has committed medical malpractice? Sometimes the answer is obvious: a surgeon amputates the wrong limb, or shows up to surgery intoxicated and nicks an artery with a scalpel, causing the patient to bleed out. Almost always, however, it’s more difficult to tell if a doctor’s action constitutes medical malpractice. A patient may have a poor or unexpected outcome, but should the doctor be held liable? That depends on whether the doctor’s actions were consistent with the standard of care.
We’ve repeatedly discussed the elements of a medical malpractice case in this blog:
Often, the most difficult element to prove is whether the doctor breached their duty. You often cannot tell if there was a breach just from the outcome. A doctor can do everything perfectly, and a patient may still die; the doctor may make a terrible mistake, and the patient may somehow be unaffected. So how do you know if a doctor breached their duty?
In a medical malpractice case, the determination of whether a doctor breached the duty of care is by examining the applicable “standard of care.” The standard of care is the process that a reasonable doctor, similarly situated, would use to diagnose and treat a patient under the circumstances.
A reasonable surgeon, for instance, would double-check which of a patient’s limbs was to be amputated. That’s a fairly extreme example; we can all agree that is a reasonable action to take! Sometimes it’s not so clear whether an action (or inaction) is reasonable. So we compare the doctor’s actions to those of doctors in a similar situation—but what exactly does that mean? Are we measuring the doctor against other doctors elsewhere in the country? In the same state or city? With the same level of medical training? With the same access to resources?
Attorneys sometimes speak of the “applicable standard of care.” In other words, there are different standards of care for medical malpractice that may apply. Under a national standard of care, a doctor would be held to the standard of an ordinary prudent physician in the same field under similar circumstances. This standard assumes that a cardiologist in Chicago and a cardiologist in rural Oklahoma would have the same training and use the same level of judgment. (This assumption may or may not be accurate, of course.)
However, a cardiologist in Chicago might have more sophisticated diagnostic or treatment options at her disposal. The doctor in Oklahoma would generally not be held liable for failing to use resources that were not available to him.
Some jurisdictions, such as Oregon, use a “community” or “locality” standard. Under that standard, health care providers are judged in comparison with other providers in the same field in the same community with similar training and experience. The community standard recognizes that doctors in certain regions may not, in fact, have the same educational and practical background as doctors in others.
The standard of care in Oregon has been written into state law by the legislature:
“A physician licensed to practice medicine or podiatry by the Oregon Medical Board has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community. ORS 677.095(1).”
If you suffered an injury at the hands of a medical professional, it is critical to understand the standard of care the doctor is being held to. How that standard is viewed could be the difference between whether the doctor is held liable for your injury or not.
Of course, good doctors can disagree about how to evaluate and treat certain symptoms and conditions. What happens if a doctor pursues a course of action that most doctors would have disagreed with, but that others would support? In some cases, the “respectable minority rule” can allow a doctor to escape liability. That rule says that even if a doctor does not follow the same diagnostic or treatment protocols that most physicians would, they can still establish that a reasonable minority of doctors would have acted as they did.
Whether a particular doctor observed the applicable standard of care is usually established by the testimony of an expert witness, typically a respected and experienced physician in the same field. If you have a medical malpractice claim, it is important to work with an experienced attorney who has access to trusted experts who can testify that your doctor did not meet the standard of care.
If you believe you have a medical malpractice claim, but have questions about whether your doctor upheld the applicable standard of care, contact The Fraser Law Firm P.C. to schedule a consultation.
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