Saturday, November 21, 2009

Medical Malpractice - The Standard of Care Issue

There was a time when patients believed their doctors could do no wrong. Sadly, that is no longer the case. In fact, medical malpractice is the number one area where wrongful death cases are filed. In this article, we take a look at the standard of care issue that is central to most medical malpractice cases.

The rule of law in this country is based on a number of general concepts. The paramount factor is "duty". You must have a duty to do something and breach that duty before you can ever be found liable for anything. For example, you have a duty to drive a car while competent to do so. If you drink all night and get behind the wheel with a .2 blood alcohol level, you've breached that duty and can be found liable for doing so.

Defining the duty and breach there of in medical malpractice cases is a bit more difficult. Back problems are a major health problem these days. The medical course of action in some cases is a discectomy in which surgery is performed on a herniated disk to provide relief to the patient. Well, what happens if the surgery does not produce relief? Did the doctor commit malpractice? More specifically, what is the doctor's duty in the specific case? The answer is found in the standard of care.

A doctor is not a miracle worker. Some medical treatments just don't work. Under no condition is a physician required to produce a perfect result. That physician, however, has a duty to perform up to the standard of care in the medical community. The standard of care is simply the minimum level of performance that a specific group of physicians would perform at when faced with the same medical condition. Let's look at an example.

I go into the doctor for a pain in my stomach. The doctor asks me a bunch of questions and has an x-ray taken. He chalks it down to a muscle strain and sends me home with a prescription for pain killers. A month later I go to the emergency room in major pain and am diagnosed with stomach cancer. I die six months later and my wife sues for wrongful death based on medical malpractice. Expert testimony establishes that the standard of care required the doctor to also perform a blood test which would've shown the cancer. He had a duty to perform to the level of the standard of care, but breached it by failing to do the blood test like other doctors would have. Please note this is entirely a hypothetical and doesn't reflect the true issues in such a case.

One caveat that arises with the standard of care is the pool of doctors considered. Some jurisdictions look to what the doctors in the immediate community would do. Some states require a jury to look to a statewide or even national standard. The differences can be surprising and also lead to very different results in cases that have very similar facts.

Thomas Ajava

Thomas Ajava is with - the number one site on the web for finding a Madison County wrongful death attorney.

1 comment:

  1. It is extremely interesting for me to read this article. Thanks for it. I like such themes and everything that is connected to them. I would like to read more on that blog soon.


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