In the last column we looked at what “negligence” really means in the medical malpractice context. We discussed that, as a legal term of art, it does not carry the colloquial meanings of unthinking or slipshod conduct; care might actually be done with thought-out intention and still be negligent, because that term refers only to a failure to meet a superseding standard, the standard of care.
We then noted that “What then becomes clear is that negligence and the standard of care mutually define each other. A finding of negligence is arrived at by comparing a defendant doctor’s actual conduct to what will usually be referred to during the trial as ‘good and accepted medical practice,’ and meeting the standard of care so as to be non-negligent means possessing the level of skill and knowledge that equivalent practitioners do and using that skill and knowledge as is considered appropriate in the medical community. They are literally two sides of the same coin.”
But is that legal reality actually just glib hand-waving in a modern medical world in which technology increasingly makes the standard of care a moving target that doctors practicing in varying settings will have varying abilities to meet? If every patient is unique, can an overarching metric really be pinned down enough to declare that a given doctor was negligent as a legal certainty? If we do not want medical practice to be a cookbook, can we also set a banner that everyone has to march under?
The answer offered by the litigation process is that the fairness of a standard of care is addressed by both sides being able to introduce testimony as to the prevailing requirements that should have been met in a given case. But the reality is that this “battle of the experts” can actually just double all these issues.
Instead, therefore, let’s take a medically practical approach, with the commonly accepted definition of the standard of care: what is recognized as acceptable and appropriate by reasonably prudent similar physicians.
“Reasonably prudent” are linchpin words there: they take us out of the theory of a textbook and into the real world of medical practice, where the standard of care can be understood as acting sensibly under the actual circumstances. Plaintiffs carry the burden of proof, and a plaintiff’s case will therefore rest on establishing that this did not happen in the course of their care at the time and place and under the conditions when it was carried out.
But this is law, and compliance devils lurk in the semantic details, so “similar” and “circumstances,” while sounding objective, deserve a closer look as to how they are established.
The old concept of doctors as generally knowledgeable in medicine has long been outdated. A defendant doctor can now only be judged as to their adherence to practices that are accepted within their own specialty or a specialty whose work they voluntarily took on, and specialty overlap is now extending as a requirement for the expert witnesses who will be proffered to explain to the jury what “accepted practice” entails. The set-off against an unqualified expert has previously been to reveal their limitation with (withering) cross-examination, but many states have now made it a requirement that the expert witness (who is, after all, there to instruct the jury) should be in the same specialty, or even sub-specialty, as the defendant. An example of this is an adult oncologist being barred from being an expert in a pediatric oncology case.
To be frank, this is in no small part the result of insurer and defense bar lobbying because it reduces the available pool of experts for the plaintiff, particularly in high-value cases in subspecialties with fewer practitioners. However, as a practical matter in the actual course of the presentations to the jury, it does go to fairness.
Then, as in the joke about establishing value in real estate, location also matters.
Before medical education was standardized and specialty boards initiated systematic certification, doctors in different locations often had very disparate backgrounds and skills. The original rules on standard of care reflected that, and so only what was done in the local community mattered to establish what should have been done. Modern medical training and certification and the new reality of internet access to CME and telemedicine have since led, in most jurisdictions, to a functionally unified standard under which a physician must possess “the ordinary skill, learning, and experience of the profession generally” and “exercise the care and skill of the average qualified practitioner,” and even where the locality rule is maintained, a doctor with superior knowledge or skill is required to use that.
The way this dovetails with the issue of being reasonable under the actual circumstances is that, say, a rural doctor without easy access to the most advanced technology, or a doctor running a storefront office in a poor urban neighborhood, will receive an evaluational set-off for those limitations in the assessment of whether they met the standard of care.
However, that is not a “get out of negligence free” card. The doctor practicing in a limited setting must still have the same basic level of training, and exercise the same basic level of judgment and diligence under current medical standards, as a doctor practicing in a university center or a wealthy suburb. It is the extent to which they could practically employ those skills that is the discriminator on whether the care they delivered met the standard of care as well as was reasonably possible in their location. For example, if a small community hospital does not have the capability to do emergency neurosurgery, an ER physician there cannot be found negligent for failing get a procedure done on site. However, they are responsible for knowing that it is needed and for activating any available process to get it done elsewhere. Similarly, a doctor at a free clinic is responsible for recognizing when their patient ideally needs an MRI and for attempting to get it covered but, if that fails, to at least use appropriate skill and knowledge to order an alternate modality to try to reach an accurate diagnosis.
But what about doctors acting in a way that is not consistent with the applicable standard? This became a hot-button issue during the early phases of the COVID-19 pandemic, when strategies were evolving rapidly and some, like treating with hydroxychloroquine, failed to meet expectations, while others, like proning, became new standards in the critical care of these patients.
The answer there is that the standard of care is not a popularity contest that only looks by rote at what the majority of doctors do; courts will recognize the “respectable minority rule.” This allows the defendant doctor to show by personal experience and citation from the literature that the course of care they followed is accepted by a substantial enough segment of practitioners to keep it within the scope of being reasonable under the circumstances of the patient’s treatment.
In making an assessment as to evidence in this aspect, courts will understand that, although medicine must have formalized standards for practice, “regions of art” also exist within it. It is then the role of the expert to explain, in a way that text excerpts and population statistics cannot, how the intangible aspects (such as best medical judgment in a given setting) affected the case. The plaintiff would, of course, be able to offer a rebuttal through their own expert and citations that the course of care was actually just fringe, but a medically substantive alternative should stand up.
So, what can we say in summary about the fairness of the defining requirement in a process that doctors start from a premise of mistrusting?
Well, we can say that the scope of the standard of care and how that is implemented in the adversarial process bridges the objective necessity for a ground level of training, expertise, and judgment, while also encompassing the practical reality that medical treatment must be flexible, and so, yes, that it is fair.