Malpractice Consult: Elements of Malpractice: Standard of Care

Article excerpt

When a patient files a medical malpractice claim, his first order of businessaddressed in the July 4 "Malpractice Consult" column (available at www.memag.com)-is to prove that the physician had a duty to him. Next, the plaintiff must show that the doctor breached that duty by not meeting the standard of care. Doctors haven't met the standard of care if they:

* Did something a "reasonably prudent" physician wouldn't do under similar circumstances.

* Didn't do something a reasonably prudent doctor would have done under similar circumstances.

* Failed to demonstrate the knowledge and ability that is expected of doctors who provide the service in question.

To determine whether a duty has been breached, judges and juries look to accepted practice standards of physicians in the relevant specialty-which, depending on the circumstances, might not be the defendants specialty. For example, an internist who reviews a chest X-ray and makes decisions based on his finding might be measured against the standard for radiologists.

The legal elements of the standard of care include the application of medical knowledge and skill and the exercise of reasonable care and best judgment. An error in judgment is not, in itself, evidence of malpractice. A judge or jury makes that determination after reviewing the evidence.

Good documentation, of course, is key. A physician defendant who has carefully described his reasoning process will have an easier time demonstrating that an error didn't reach the level of malpractice.

Lawyers lay out the evidence

In their efforts to prove that the standard of care was-or was not-met, defense and plaintiffs' lawyers typically consider several kinds of evidence:

* Statutes, such as the federal EMTALA and consent laws, which may differ from state to state.

* Practice parameters. If the doctor departed from accepted guidelines and protocols, the onus is on him to explain why. …