Physician liability in a medical malpractice case is determined by assessing whether medical care meets the “standard of care.” Legal standards of care are derived from various sources including common law, state statutes, federal and state agencies, and professional ethics.[1]
Unlike other negligence cases, physician defendants are not judged against “reasonableness” standards, or what a reasonable person would have done in similar circumstances. Because of the unique specialized knowledge possessed by physicians, the medical profession controls the standard of care by shifting from the prescriptive “reasonableness” care standard used in legal negligence to the descriptive standard of the care that physicians customarily provide.[2]
The standard of care to which doctors are held accountable is the customary care adhered to by practicing physicians. The law requires a medical malpractice plaintiff to define the standard of care, present evidence showing that the physician breached the standard of care, and causally link the breach to patient’s injuries.[3] Legally, the medical standard of care is the degree of skill, knowledge, and care that would ordinarily be exercised by an average physician in similar circumstances.[4] This legal standard definition coincides with that of healthcare’s customary care standard and requires a degree of skill comparable to the standard or average care – not the utmost degree of care and skill attainable or known to the profession.[5]
Legal standards derived from customary care could provide clarity to acceptable customary care standards because each medical malpractice suit would essentially delineate the standard of medical care that is legally acceptable in the particular field. In any given case, judges, lawyers, and legislators establish general principles for defining the standard of care. However, the standard is only made explicit when a patient brings a medical malpractice suit, and then it is based only on the juries’ interpretation of the expert testimony of members of the profession.
The escape fire analogy in the courtroom lies in identifying the competing jurisdictional standards of care requirements and then establishing a nationally recognized measure that balances EBM, custom, and perhaps even reasonableness under the umbrella of what a reasonable physician would have done in the given circumstances.
[1] Reed J. Cybermedicine: defying and redefining patient standards of care, Ind L.Rev. 2004: 37:835, 857 [2] Maxwell J. Mehlman, Professional Power and the Standard of Care in Medicine, 44 Ariz. St. L.J. 1165, 1225-26 (2012). [3] Richard L. Wiener, A Psycholegal and Empirical Approach to the Medical Standard of Care, 69 Neb. L. Rev. 115 (1990). [4] See 61 AM. JUR. 2D Physicians, Surgeons, and Other Healers § 188 (2012). [5] 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers § 206 (2011).