Most doctors know that the elements of a medical malpractice case are (1) a duty to the patient, (2) a negligent failure to render proper medical care, (3) that the negligence caused the harm to the patient and (4) damages.

However, many doctors are not clear about how the central issues – proving negligence and proving causation – play out in a case, so we will be taking a closer look at those.  In this column we will look at how negligence is proved and in the next column we will look at how causation is proved.

In most cases, in order for a plaintiff to prevail, they must demonstrate that there was a deviation from the Standard of Care.

That is actually a two-step analysis because the simple-sounding legal language that the Standard of Care is what is “recognized as acceptable and appropriate by reasonably prudent similar physicians” actually encompasses both specialty and location in “similar”.

Specialty is fairly straightforward.  Both in fairness to the defendant doctor and with regard to the expert witness educating a lay jury there should be a match between the standards being claimed and the expert opining on those to the area of practice of the defendant doctor. The only exception is if the defendant doctor stepped outside their own area of expertise, in which case they will be held to the standards that would apply to a specialist in that area of medicine.

Some states have actually made this congruence between expert and defendant specialization a statutory requirement but even in states that do not mandate this the closeness of the tailoring of the expert to the defendant becomes an issue of meeting the burden of proof.  For example, consider a defendant in a case about a failure to diagnose breast cancer on a mammogram whose background and Board certification are in general diagnostic radiology but who also did a fellowship in breast imaging and whose day-to-day work has focused on mammography. The plaintiff can use an expert who is a general radiologist or, within the limits of state law, even a radiologist specialized in another area, but that expert’s ability to opine on standards in mammography will be subject to attack on cross-examination in a way that the input of an expert who is a breast imager would not be, and if the plaintiff tries to use an oncologist who is familiar with mammography but does not practice it that expert might actually be precluded from testifying and certainly will be subject to impeachment on their lack of actual hands-on involvement in the area.

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The second issue – location – used to be dealt with in the most limited fashion. In the years before medical education was standardized and specialty boards began systematic certification there was a huge disparity in physician skill levels. In that setting, both necessity (“We need Doc Jones in this town even if he isn’t the greatest doctor”) and parochialism (“We don’t want some fancy big city folks looking down on our Doc Smith”) produced the rule that only what was done in the local community mattered to establish the Standard of Care. This approach is, however, completely incompatible with contemporary standards of medical training and certification and the new realities of internet access to CME and telemedicine access to  outside facilities and experts for consultation. There is therefore a trend to a fully nationalized 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”. Further, even in jurisdictions that retain a locality rule, if a doctor actually has superior knowledge or skill then he or she is required to use that even if it exceeds what would otherwise be the Standard of Care in the local community.

The use of a national standard does not, however, mean a requirement of equal facilities to meet the Standard of Care. In fact, the opposite is the case. Of course, a doctor who is working out of a facility that itself cannot meet minimum standards of equipment or cleanliness to insure patient safety will not be able to meet the Standard of Care by definition.  However, requiring that the rural physician or the physician running a storefront office in a poor neighborhood must have the same level of training and exercise the same level of judgment and diligence under current medical standards as a doctor practicing in an urban center or a wealthy suburb still permits taking into account the practical limitations that that physician may be under.

Therefore, if a small community hospital does not have the capability to do emergency neurosurgery that could be readily accessed in a university hospital in a city,  an ER physician there cannot be found negligent for failing get an immediately-needed procedure done on site but could be held liable if the situation allowed a wider time frame that permitted the patient to be brought to another facility but the physician did not arrange for that transfer because he lacked the skill and knowledge to know that it was needed.  Similarly, the fact that a family practitioner in a multi-specialty medical group and with a well-insured patient can just send the patient down the hall for an MRI would not be a basis for holding liable a doctor  at a free clinic who could not get an MRI  covered under Medicaid or charity care, but to be within the Standard of Care that doctor must at least use appropriate skill and knowledge and employ all the modalities that he or she has available to diagnose the patient as accurately as possible.

The general rule is that if an area or practice lacks facilities or specialized expertise the non-emergent patient should be advised of where to seek those and that that advice will itself meet the Standard of Care if the patient opts to go elsewhere.

This all having been said, though, what if the doctor still acted in a way that is not consistent with the applicable national – or even local – standard? Is it a slam dunk for the plaintiff?

The answer to that question is “No”. That is because while the most common legal definition of the Standard of Care is how similarly qualified and situated physicians would have managed the patient’s care, this is not a popularity contest that simply looks at what the majority of doctors do. Courts will therefore also recognize the “respectable minority rule”. This allows the defendant doctor to show (usually by citation from the literature and from texts) that although the course of diagnosis or treatment that he or she followed is not consistent with a majority opinion that it is nevertheless one that is accepted by a respectable minority of practitioners. If the plaintiff contends that that claimed minority accord in the medical community is actually fringe medicine they would proffer their own expert and citations from peer-reviewed articles and accepted treatises to that effect.


Dr. Medlaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.