Standard of Care Issues

Fairfax Injury Lawyer Brien Roche Addresses Standard of Care IssuesIn almost any negligence action there is an issue of what is the standard of care.  In fact the concept of standard of care I would say is the second most important issue in tort cases.

Duty vs Standard of Care

The most important issue is that of duty. That is what is the source of the duty and then what is the actual duty. That concept of duty is addressed elsewhere.

Assuming then there is a duty the standard of care must be defined. In most tort cases the standard of care is what the reasonably prudent person or professional would do in that case. Sometimes the standard of care is defined by statute, regulation or ordinance. In most auto crashes the standard of care is defined by law which may be called the Rules of the Road. For instance the standard of care may be to stop and yield at a stop sign.

Expert Testimony

In a professional liability case the standard of care is what the reasonably prudent practitioner would do in that case. It is possible in a professional liability case that there is a statute, regulation or ordinance that sets the standard. In most instances there is not. That practitioner may be a lawyer, doctor, accountant or other. In professional liability cases the standard of care in most instances is proven through an expert witness. That expert is someone with knowledge of that specialty.  Furthermore that expert may rely upon any of a number of things to establish the standard of care. He may rely personal experience or literature in the field. He may rely on published texts or guidelines from professional groups.  Any of those may serve to support what that expert says is the standard of care for that endeavor.

Without that type of proof the case may not be allowed to go forward.  An exception to that would be what is called a per se violation. For instance a wrong-site surgery.  In other words if the surgeon was supposed to operate on the right leg and operated on the left leg, you don’t need an expert for that.Call or contact us for a consult.

Contrary Standards

The standard of care that applies to your case may be disputed.  For instance the plaintiff may say the standard of care is “X”.  The defendant may say the standard of care is “Y”.  As a result it becomes a question for the jury or judge to decide what in fact is the standard of care that applies to this case. The judge or jury also decide whether the defendant violated that standard of care.

Finding A Common Thread

As a result, your goal should be to try to get the opposing party to agree with you as to what is the standard of care. If you can do that, you’ve probably won the case. To do that there are several things you can do:

  • Check the literature and see if there is some agreement as to what should be done in this case.
  • Get hold of any guidelines published by the hospital (medical malpractice cases)where the incident occurred. Or you may be able to find guidelines from the owner of the property.  These guidelines may be on their website.  You may have to go to the “Wayback Machine” to get older versions. These guidelines may be called company rules. Company rules in Virginia may not be admissible at trial. You may not be able to rely on them.
  • On the website you may find references to literature.  Contact those authors to see what they say is the standard of care in this case.  If your case is against a hospital, then the hospital can’t very well challenge someone who they say is an expert.
  • Finally check any advertising to see what they say about themselves.  If they are the hospital to go to “when every minute counts” then that may be useful in your case.

Standard of Care-National Standard

It may be that the standard of care varies from locality to locality.  The standard of care may vary from state to state.  In most medical specialties the standard of care is a national standard of care. However it need not be.Call or contact us for a consult.

Standard of Care-Objective Standard

The standard of care is not what an expert thinks should be done in that case. In contrast it is a more objective standard. It is what the reasonably prudent practitioner or person would do in that case.  In that sense the standard of care is referred to as being objective. It is not subjective.

Practice Guidelines are published by a number of entities. They are designed to guide professionals, property owners or others. They offer guidance on how to deal with certain conditions. These guidelines can be helpful. However they can also be your worst enemy.

In any case the Plaintiff must be prepared to deal with guidelines. Either to argue why they apply or why they do not.

In 2010 the Affordable Care Act provided for the office of Health Policy and Research to develop practice guidelines. These were to serve as a “safe harbor” for doctors.

Established Standards

Practice guidelines themselves should be governed by certain standards. The Institute of Medicine, which is part of the National Academies of Science, lists several standards that practice guidelines should meet:

  • Transparency
  • Disclosure of any conflicts of interest
  • Identification of all developers
  • Systematic reviews
  • Adequacy of scientific basis
  • External review
  • Review and updating

The Agency for Health Care Research and Quality (AHRQ) maintains the national guideline clearinghouse. It has over 2,400 medical practice guidelines. They are prepared by 300 groups. Call or contact us for more info.

Practice Guidelines

In the course of any professional liability case practice guidelines need to be reviewed with several ideas in mind:

  • A common shortcoming of guidelines is that they are out of date.
  • Many are prepared by those with a financial interest.
  • They may lack scientific support.  This is seen in the insufficient data and improperly designed and conducted clinical trials.  If you’re going to rely upon the guidelines, then you want to bolster them.  At the very least they must represent best practices.  If they were based upon studies and research that is reliable that needs to be developed.
  • The guidelines can also be attacked in that they do not provide the standard of care for the particular case in question.
  • If the guidelines were not followed in this case then lay the foundation.  Are there notes confirming why this case was one where the guidelines need not be followed.  A good example of that is general anesthesia for interventional pain procedures.  The guidelines indicate that the anesthesia is to be local and not general.  The Centers for Medicare and Medicaid Services likewise confirm this.  If the provider is doing other than that, there needs to be medical documentation as to why.

The balance of this blog post is a discussion of various types of medical malpractice. I will address how the standard of care applies as to those forms of medical or, in one case, nursing malpractice. Call or contact us for more info.


The American Diabetes Association has published standards as to the care of diabetes. If these are complied with they provide the means to bring blood sugar under control.  First of all is daily testing of blood sugar by the patient. Next is the regular testing of glycosylated hemoglobin by the doctor. With this info insulin can be adjusted to bring blood sugar levels as close as possible to that of a non-diabetic.  In other words the failure of a doctor to use this type of program is probably malpractice.

It is high levels of blood sugar that cause the problems. In the small blood vessels the sugar does its damage. These small vessels serve kidneys, peripheral nerves in the hands and the feet and the retina.  Patients that are informed of the mechanism of diabetes and the ease of controlling it become believers. They tend to be faithful to their own testing habits.  As a result the key is getting that info to the patient. This serves the well-being of the patient and avoids diabetes malpractice.

Any diabetes malpractice analysis is a two-way street. Therefore you not only look at the fault of the doctor but you may also look at the conduct of the patient.

Reducing the Risks of Diabetes Malpractice

Diabetes is sometimes called the life style disease. Your risk of getting this blood sugar disorder is increased if you live an unhealthy life style. In contrast if you follow a healthy diet, exercise and control your blood pressure, weight and cholesterol then the risk is much reduced.

Good Habits

There are several things that can be done in that regard:

  • Eating breakfast every day reduces your risk of getting diabetes by 34 percent. Having breakfast helps control your appetite and calorie intake for the rest of the day. Some good choices of things to eat early in the morning are peaches, plums and nectarines. Also they have bio-active compounds that help prevent heart disease.
  • Increase your intake of fruits and vegetables. Decrease your intake of processed meats. Processed meats are such things as hot dogs, breakfast sausages, and luncheon meats. A Mediterranean-style of diet with plenty of fruits and vegetables has been shown to reduce the risk of diabetes.
  • Get at least six hours of sleep a night. Sleeping less than six hours a night is associated with a 60 percent higher rate of diabetes. Sleep deprivation makes your appetite regulating hormones go haywire. In addition this increases cravings for sugary and salty foods.
  • Get rid of the cigarettes.
  • Exercise. The exercise does not have to be vigorous. It should be some form of aerobic exercise. This helps to not only control the cholesterol and blood pressure but also regulates the insulin production. Take at least 10,000 steps per day. Likewise consider lifting weights if appropriate. It not only improves muscle tone but increases bone strength.

Call or contact us for more info.

Gallbladder Surgery Negligence and Standard of Care

Gallbladder surgery negligence can be seen in the cutting of the common bile or common hepatic ducts. The underlying problem that necessitates surgery is the presence of gallstones. This may dictate the surgical removal of the gallbladder.  This procedure is known as a cholecystectomy.

The Role of the Gallbladder

The gallbladder collects and concentrate bile. Bile is used to aid in digestion of fatty tissue.  Bile is dispatched by the gallbladder into the small intestines by way of the biliary ducts.

The presence of gallstones in the gallbladder can be life threatening. The stones may block the ducts.  As a result this blocks the flow of bile.  If the bile build up in the bloodstream the patient becomes yellow or jaundiced.  A prolonged blockage of any of the biliary ducts can damage 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.

Gallbladder Surgery Can Be Complex

A rule of surgery is that no anatomic structure is to be clipped or cut until the surgeon has clearly identified the structure.  A cardinal sin in biliary tract surgery is injury to the common bile duct.

Although the surgery in question is not lengthy it can be complex.  As a result lack of experience can produce some very bad results. Call or contact us for more info.

Nurse Negligence

Nurses have a duty not only to comply with the standard of reasonable care of a patient but also have a duty to act as an advocate for the patient. Their failure to do so may bring their action within the scope of malpractice. In addition under the American Nurses Association Code of Ethics for Nurses, the nurse is an advocate for the patient. The nurse must be alert to and take action regarding incompetent,  unethical, illegal or impaired practice by any member of the health care team.  Also nurses are 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.

Standard of Care In Nursing

The overall nursing standard of care may be established by a number of different means:

  • Most states have administrative codes that are called Nurse Practice Acts.
  • Nursing organization standards such as standards published by the Nurses Association of the American College of Obstetrician and Gynecologists.
  • Nursing literature.  Some standard nursing textbooks are Foundations of Nursing Practice and Illustrated Manual of Nursing Practice.
  • Risk management publications.  These publications, put out principally by the insurance industry and by hospitals may establish the standard of care.
  • Finally hospital policies and procedures.  These need to be obtained in the early course of discovery if litigation is initiated.

Failure to Communicate

Failure to communicate between health care providers is a frequent cause of serious medical injury. Many hospitals use the “National Patient Safety Goals” published by the Joint Commission. This is a basic standard. These goals, referred to as NPSG guidelines, clarify how certain things should be communicated and recorded among health care providers. Such things as telephone orders, abbreviations to be avoided, proper hand off of a patient and communication of critical test results 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 info to another state the current situation. Next is the background leading to the current situation. Next is the assessment of the situation. Finally is the recommendation to remedy the situation. Documentation of this should be maintained in the chart.

In looking at communication between providers you must look at the issue of disruptive conduct. Is the doctor known for engaging in abusive behavior towards other providers. That impedes communication. Furthermore the disciplinary history of that doctor may be important. Many hospitals have a policy of zero tolerance of any such disruptive behavior.

In addition you need to 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 action, then the nurse is to notify the supervisor. As a result the failure of the nurse to do so may make the nurse liable.

Call or contact us for a consult. Also for more information on standard of care issues see the pages on Wikipedia

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Standard of Care Issues

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Contact Us For A Free Consultation