In 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.
However the most important issue is that of duty. That is what is the source of the duty. Also 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 is what the reasonably prudent person would do in that case. Sometimes the standard is defined by statute, regulation or ordinance. To the extent that is the case the legal standard may be mandatory but is also a minimum standard. The defendant may be held to a higher standard. Ivory Storage Co v ACLR Co 187 Va. 857 (!948)
In most auto crashes the standard 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.
In a professional liability case the standard is what the reasonably prudent practitioner would do in that case. There may be 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 on 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 case.
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.
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.
As a result, your goal should be to try to get the opposing party or their expert 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:
Prepare a typewritten statement as to what you maintain the rule is with 2 blocks underneath, stating either “agree” or “disagree”. Have the witness check one of those blocks.
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.
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.
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:
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. They can be found at www.guideline.gov. Also practice guidelines are found in the publication known as UpToDate which can be subscribed to. Call or contact us for more info.
In the course of any professional liability case practice guidelines need to be reviewed with several ideas in mind:
Call or contact us for a consult. Also for more information on standard of care issues see the pages on Wikipedia