Standard of Care Issues

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.

Duty vs Standard of Care

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.

Expert Testimony

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.

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 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:

• Check the literature and the law and see if there is some standard 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 their 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.
• Also 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.

Some Questions to Ask as to Standard of Care:

• • What is the purpose of having standards or a standard of care?
  • Would you agree that such standards or standards of care are intended to prevent unnecessary harm?
  • Agree that the goal is to protect patients/patrons?
  • Would you agree that the goal is to do no harm?
  • Would you agree that if harm has been done then the goal is to make sure that no additional harm is done?
  • Agree that there is nothing more important than the safety of patient/patron?

Your Job

• Would you agree that your job is to comply with the standard?
• Would you agree that your job is to take no unnecessary risk in regards to the patient/patron?
• Agree that it’s never the standard of care to needlessly expose the patient/patron to risk?
• Would you agree that records relating to the care/maintenance must be accurate for the safety of the patient/patron?
• Would you agree that in terms of being well-informed as to the overall condition, that you need to do your homework?
• Agree that in terms of maintaining the safety of the patient/ patron, you need to pay attention to the overall conditions?
• Would you agree that under no circumstances should you do any harm to the patient/patron?
• Would you agree that if there are any of these standards/standards of care that you don’t agree with then tell me how they should be revised.
• Agree that if these standards/standards of care are violated, then it is foreseeable that someone may get hurt.
• Would you agree that the greater the danger is to the patient/patron then the greater the care should be?
• Would you agree that when it’s a life or death situation, you and all of your team members must understand the plan in order to protect the patient/patron?
• Agree that the best way to maintain safety may be through redundancy?  That is, more than one person checking on the overall condition.

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.

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.  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.

Practice Guidelines

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

Shortcomings

• 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.

Non-Compliance

• 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.
• You should obtain through discovery all practice guidelines, protocols, checklists, standing orders or treatment pathways that offer guidance as to how the patient should have been treated. If none are produced then send a Request for admission that the defendant had no system in place to prevent the error in question.
• If the doctor being sued is board certified then ask if the error in question was the subject of testing.
• Find out if the defendant is a member of an organization that commits to follow pertinent guidelines.

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