In almost any negligence action there is an issue of what is the standard of care. That becomes especially important in a medical malpractice case because the standard of care typically must be proven through an expert witness i.e., a health care provider. That standard of care is what the reasonably prudent practitioner in that particular specialty would have done in that circumstance. That standard of care is proven through bringing another practitioner in that specialty into the courtroom to establish what the standard of care is. That practitioner may rely upon any of a number of things in order to establish the standard of care i.e., the provider’s own personal experience, literature in the field, published texts or guidelines published by professional associations. Any of those may serve to support what that provider says is the standard of care for that particular endeavor.
Without that type of proof, typically a medical malpractice case cannot go forward. An exception to that would be an instance where there was wrong-site surgery. That is, if the surgeon was supposed to operate on the right leg and mistakenly operated on the left leg, you don’t need an expert witness typically for that.
You need to understand also that the question of what is the standard of care that applies to your case may be disputed. That is, the plaintiff may say the standard of care is “X”. The defendant may say the standard of care is “Y”. It then becomes a question for the jury or judge to decide what in fact is the standard of care that applies to this case and then also to determine whether or not the defendant violated that standard of care.
It is conceivable that the standard of care may vary from locality to locality. It is also conceivable that the standard of care may vary from state to state. In most medical specialties the standard of care is a national standard of care but it need not always be in all cases.
The standard of care is not necessarily what an individual physician thinks should be done in that case but rather it is a more objective standard as to what the reasonably prudent practitioner would do in that circumstance. In that sense the standard of care is referred to as being objective as opposed to subjective.
Practice Guidelines are established by a number of different entities in order to guide physicians and health care providers on how to deal with certain conditions. These guidelines can be helpful in a medical malpractice case but they can also be your worst enemy.
In any case the Plaintiff must be prepared to argue either why the guidelines are valid or, in some instances, why the guidelines are not valid if they are being used against the Plaintiff.
In 2010 the Affordable Care Act provided for the office of the Oregon Health Policy and Research to develop practice guidelines that would establish the legal standard of care and thereby potentially serve as a “safe harbor” for physicians.
Practice guidelines to some extent are governed by certain standards themselves as to their validity. The Institute of Medicine which is part of the National Academies of Science lists several standards that practice guidelines should meet:
The Agency for Health Care Research and Quality (AHRQ) maintains the national guideline clearinghouse which has over 2,400 practice guidelines prepared by 300 organizations. Many of them are prepared by medical practice groups.
In the course of a medical malpractice action,these practice guidelines need to be reviewed with several ideas in mind:
This concept of standard of care is seen not only in medical malpractice cases but can arise in virtually any negligence case where there has to be some evidence as to what the duty was i.e., what should have been done in this circumstance. That duty can be established sometimes by means of a statute, sometimes by means of a local regulation, sometimes by means of some safety code such as a building code or other type of code. In the alternative it may also simply be established by what is the custom in that locality based upon what is reasonable. The concept of duty and the concept of standard of care are somewhat overlapping but they are different.
What follows is a discussion of various types of medical malpractice and how the standard of care applies as to those particular forms of medical or, in one case, nursing malpractice.
The American Diabetes Association has published standards as to terms of the care and management of diabetes. If these are complied with they provide the means to bring the blood sugar of most diabetics under control. The combination of daily testing of blood sugar by the patient and the regular testing of glycosylated hemoglobin by the doctor provide the information to allow adjustments in insulin to bring blood sugar levels as close as possible to that of a non-diabetic. The failure of a doctor to implement that type of regimen is probably diabetes malpractice.
It is high levels of blood sugar, particularly in the small blood vessels that serve sensitive areas of the body like the kidneys and the peripheral nerves in the hands and the feet and the retina of the eye that is particularly destructive. Typically patients that are informed of the destructive mechanism of diabetes and the ease with which it can be controlled become faithful in their own testing habits. The key is getting that information to the patient both for the well-being of the patient and to avoid diabetes malpractice.
The American Diabetes Association has been especially forthright in setting forth what these basic standards of care are. They encourage all physicians to bring them to the attention of patients and to enforce them within their own practice.
In a study published in March of 2011 from the University of Texas Health Science Center in San Antonio it is reported that people who took a new drug marketed under the brand name of Actos were less likely to develop diabetes than a similar group who was given a placebo. Actos is from the same class of drugs as Avandia which had been found to increase the risk of heart attack. Actos is believed to be safer than Avandia but it has been linked to increased risk of congestive heart failure and the Food and Drug Administration is looking at possible links to bladder cancer. Questions continue to remain as to whether or not this drug in fact prevents diabetes or simply is masking it by lowering elevated blood sugar levels.
Any diabetes malpractice analysis is a two-way street, i.e. you not only look at the fault of the physician but you may also have to look at the conduct of the patient.
Diabetes is sometimes called the life style disease principally because your risk of getting this blood sugar disorder is increased if you live an unhealthy life style. If on the other hand you follow a healthy diet, exercise and control your blood pressure, weight and cholesterol then the risk of getting diabetes is considerably reduced.
There are several things that can be done in that regard:
Gallbladder surgery negligence can be seen in the cutting of the common bile or common hepatic ducts.Typically the underlying problem that necessitates surgery is the presence of gallstones in the gallbladder thereby necessitating the surgical removal of the gallbladder. This procedure is known as a cholecystectomy.
The role of the gallbladder is to collect and concentrate bile, which is used to aid in digestion. In particular, the bile is dispatched by the gallbladder into the small intestines by way of the biliary ducts in order to assist in the digestion of fatty tissue.
The presence of gallstones in the gallbladder can be life threatening in that the stones may block the ducts. In doing so it could potentially block the flow of bile. If the bile accumulates in the bloodstream, then the patient becomes yellow or jaundiced. A prolonged blockage of any of the biliary ducts can cause severe damage to the gallbladder, liver or pancreas.
The only true cure for gallstones is to remove the gallbladder itself. The gallbladder is not an organ that is necessary for continued existence.
The cardinal rule of gallbladder removal is that no anatomic structure is to be clipped or cut until the surgeon is certain that the structure has been properly identified. A cardinal sin in biliary tract surgery is injury to the common bile duct.
Although the surgery in question is not a lengthy surgery, it can be complex. What is sometimes seen is that the surgeon performing the surgery does not have the requisite degree of experience. This alone may give rise to a claim based upon negligent credentialing against the hospital.
Nurse negligence is founded on the idea that nurses have a duty not only to comply with the standard of reasonable care in terms of the overall care of a patient but also have an obligation to act as an advocate for the patient. Their failure to do so may bring their action within the scope of medical malpractice and may expose them to a medical malpractice action. Under the American Nurses Association Code of Ethics for Nurses, the nurse as an advocate for the patient must be alert to and take appropriate action regarding any instance of incompetent, unethical, illegal or impaired practice by any member of the health care team. Nurses in general are required to report changes in a patient’s condition and/or to question the orders of a doctor when they are not in accordance with standard medical practice.
The overall nursing standard of care may be established by a number of different means:
Failure to communicate between health care providers is a frequent cause of serious medical injury and resulting medical malpractice. Many hospitals use the “National Patient Safety Goals” published by the Joint Commission as a basic standard for their policies and procedures. These goals, referred to as NPSG guidelines, clarify how certain things should be properly communicated and recorded among health care providers.For instance, such things as telephone orders, abbreviations to be avoided, proper hand off of a patient from one provider to another and proper communication of critical test results are all things that must be well defined.
One model for proper communication is what is called SBAR (Situation, Background, Assessment, Recommendation). This method requires that the provider who is communicating information to another provider identifies the current situation, what the background is leading to that current situation, what is the assessment of the situation and what is the recommendation to remedy the situation. Documentation of this communication should be maintained in the patient’s hospital chart.
In evaluating the communication between providers, in particular doctors and nurses, it is important to look at the issue of disruptive conduct, i.e. whether the doctor has a reputation of engaging in intimidating or abusive behavior towards other providers. That impedes communication. In that regard the disciplinary history of that doctor becomes important. Many hospitals have a policy of zero tolerance of any such disruptive behavior.
With the advent of electronic medical records it is important to know the technology aspects of recording information at that facility and by that provider.
It is also important to understand and review the chain of command within the health care system. Nurses are required to report concerns about a patient to the attending doctor first. If that doctor fails to take corrective action, then the nurse is required to notify the supervisor. The failure of the nurse to do so may make the nurse legally liable.
All of those different modes of communication need to be evaluated in looking at a communication failure case.
For more information on standard of care issues see the pages on Wikipedia