The “Standard of Care” is one of the critical elements of any medical malpractice case. In order to be successful, the plaintiff must prove that the defendant medical care provider fell below the standard of care and that the failure to meet the standard of care caused harm to the plaintiff. In short, the three elements of a medical malpractice claim are (1) a breach of the standard of care, which (2) causes (3) harm to the plaintiff.
The standard of care is that minimum level of care that would be provided by a reasonably competent healthcare provider in the same practice area as the defendant under the same or similar circumstances. It is not “A” level care, or “B” level care, or even “C” level care. It can be “D” level care and still be within the standard of care. This is not a very high bar for a defendant provider to clear.
As you can see, what a reasonably competent healthcare provider is expected to do will vary depending on the practice area. Each practice area will have its own standard of care and there are many, many practice areas. To make matters even more complicated, doctors from one practice area often practice in other areas besides their own. Some medical problems may be treated by doctors in a number of different practice areas. For example, a family practice doctor who treats a skin lesion will not be held to the same standard as a dermatologist who might also treat the same lesion. A general surgeon performing a bowel procedure will be held to the standard of a general surgeon, not that of a colorectal surgeon, who specializes in bowel procedures.
The standard of care is almost never written down. Medical textbooks or medical literature won’t say that a doctor must do something a certain way. The standard of care is what healthcare providers in the same practice area say it is. This creates a sizeable loophole for medical malpractice defendants. All they have to do is find another provider in their practice area who is willing to testify that their conduct met the standard of care. Pretty much no matter how poorly the healthcare provider treated the patient, there is almost always some other provider who is willing to testify that there was no breach of the standard of care. At trial, the defendant will be permitted to testify that she or he complied with the standard of care and will also be permitted to offer another provider in the same area to testify that the defendant met the standard of care. The patient will be allowed only one witness to testify about the provider’s breach of the standard of care so the defendant provider gets two witnesses to the patient’s one. This is another sizeable advantage for the defendant.
In Arizona, the legislature has done what it can to protect doctors and other healthcare providers. Among other things, it requires that a person who is going to testify about the standard of care in a medical malpractice case be in the same practice area as the defendant and have the same credentials. The complexities of having many different practice areas and differing levels of credentials creates additional imbalances favoring the defendant.
There are often arguments before the judge about whether the plaintiff’s standard of care witness is in the same practice area as the defendant and is similarly qualified. For example, if a vascular surgeon regularly performs cosmetic surgery and is sued for a problem that arose during a cosmetic procedure, should the patient have to call another vascular surgeon who performs the same cosmetic surgery or may the patient call a cosmetic surgeon? Is the practice area in question cosmetic surgery or vascular surgery?
Defendants often wait until late in the case to challenge the qualifications of the patient’s standard of care witness. If the judge agrees that the patient’s witness does not meet the legislature’s requirements, the witness will be disqualified and the case will be dismissed, unless the judge can be persuaded to give the patient another chance to find a qualified witness to testify. Defendants always argue that it is too late to go back and start over and that plaintiff patient should have complied with the statute on qualifications in the first place. This is often an attractive argument to the judge, even though the reason it came up so late was that the defense counsel waited until it would be too late to get a new witness.
Another complicating factor in standard of care analysis is that medicine is always changing. New treatments are developed and old ones are left behind. Once a new treatment becomes the standard of care, things are settled. The problem arises during the transition period. Is the innovator of a new treatment practicing below the standard of care? When does a doctor who is doing it the old way fall below the standard of care? When does the new way supplant the old way for purposes of a standard of care analysis?
If there is anything that should be clear after reading this post, it is the importance of having an experienced medical malpractice lawyer in your corner, if you are pursuing a malpractice claim. There are pitfalls at every turn. Crafty defense lawyers play games that can get your case thrown out of court. You had better have a lawyer who knows these games and can successfully prosecute your claim. The alternative is to find yourself out of court and wondering what just happened.
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