By Brian G. McConaty, Esq.
When physicians use or adopt the term “standard of care” in the context of a medical negligence case, they unwittingly play into the hands of the plaintiff’s attorney and undermine the defense. Unfortunately, the singular grammatical nature of “standard of care” implies that only one way to approach a medical problem exists, which is usually not the case. Use and adoption of this term sets a very high and unrealistic bar for physician conduct and does not adequately describe the concept of negligence.
Medical liability lawsuits are typically based on the premise that the physician was negligent. Negligence is typically defined as the failure by the physician to have acted in a prospectively reasonable way. In other words, a physician is negligent when he or she does something that no reasonable physician would do or fails to do something that all reasonable physicians would do under similar circumstances at the time in question and when viewed prospectively.
Defining the concepts
The laws of almost every state provide that a physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient. In most states, if a physician exercises reasonable medical judgment in choosing among a broad spectrum of available treatment choices, the physician’s decision, even if it results in a bad or catastrophic outcome, does not necessarily mean that the physician was negligent. If a physician provides prospectively reasonable and ordinary care, then he or she is not negligent.
The concept that is universally presented to juries in the United States is whether the physician was negligent. Negligence merges the concepts of “malpractice” and “standard of care” and is well defined by the judge in giving instructions to the jury. Because judges do not usually define “malpractice” or “standard of care,” allowing the plaintiff attorney to use these terms in depositions and at trial is potentially confusing to the jury.
The concept of “medical judgment” is pivotal in assessing whether the physician was negligent. If a jury believes that the physician exercised prospectively reasonable medical judgment, then the physician typically wins.
In preparing my clients for deposition, I tell them that I am an excellent reader. If I were to spend 2 months reading and re-reading a medical text, such as Campbell’s Operative Orthopedics, and I committed the entire text to memory, would that qualify me to practice orthopaedic surgery? “Of course not,” my clients reply. Well, why not? Because medical judgment is based not only on reading medical literature, but also on years of education, training, and experience gained in practicing medicine.
Tripping over words
The following example highlights how these concepts may be used in court. In a case that involves an infection after joint replacement, a plaintiff’s attorney may ask the orthopaedist, “Doctor, is it your personal standard of care to have a joint infection lead to amputation after joint replacement surgery?” The orthopaedist would typically reply, “Of course not!” Thus, the jury is fooled into thinking that because this infection led to amputation, the physician is negligent.
The orthopaedist could be found liable in such a case, based on this verbal sleight of hand. In fact, if standard precautions to avoid infection had been used, and no breach in sterile technique occurred, the infection and subsequent amputation were not necessarily the result of any negligence. The question that should have been posed is, “Does the occurrence of a joint infection necessarily mean that the orthopaedist was negligent?”
Although medicine is practiced prospectively, it is easily questioned retrospectively in peer review and lawsuits. When presenting a physician client’s case to an expert, I frequently call the expert and ask for a half hour of time. I do not describe the case so as to not prejudice the expert’s consideration.
I present the case, including the medical records and radiographs, to the expert in as prospective a manner as possible. In a recent case, I presented the case to the chief of the emergency service and then had him present the case and radiographs to other emergency physicians in the physicians’ call room out of my presence. This presentation attempts to assess medicine as it is actually being practiced and to try to avoid hindsight bias. Such prospective presentation also provides a favorable talking point when the case is presented to the jury.
In my opinion, the term standard of care should be avoided at all costs due to its ability to misstate the concept of negligence and to fool the jury. If a physician uses prospectively reasonable medical judgment under the circumstances at the time, then he or she should not be held liable for any claims of negligence.
Brian G. McConaty, Esq., specializes in civil trial practice, with an emphasis on medical liability defense, health law, and civil/commercial litigation. He prepared this article at the request of the AAOS Medical Liability Committee. He can be reached at firstname.lastname@example.org