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In a Medical Malpractice Case What Does Standard of Care Mean?

Fairfax Injury Lawyer Brien Roche Addresses Medical Malpractice Standard of Care

Brien Roche

In a medical malpractice case what does standard of care mean is a question that should be understood and answered to the client’s satisfaction.  Standard of care loosely means the rule that applies to the healthcare provider’s conduct.  When I say “rule” I don’t mean necessarily a written rule.  Frequently the rule or standard of care is not written but rather is simply a product of one medical expert saying what the standard of care is. 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.

Medical Malpractice Standard of Care-National Standard

In general, standard of care is a standard or rule that applies based upon what the reasonably prudent practitioner in that particular field would do.  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.

In order to establish that standard of care it is necessary in a medical malpractice case to retain a physician who has experience in that particular specialty to testify as to what the standard of care is that the defendant healthcare provider should have rendered.  Typically that expert would also testify as to whether or not the standard of care was then violated.

Medical Malpractice Standard of Care-Objective Standard

As you can see, the concept of standard of care is an important concept.  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 sthttps://www.brienrochelaw.com/wp-admin/options-general.phpandard 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.

Established Standards

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:

  • 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 which has over 2,400 practice guidelines prepared by 300 organizations.  Many of them are prepared by medical practice groups.

Practice Guidelines in Medical Malpractice

In the course of a medical malpractice action, the use of these practice guidelines need to be reviewed with several ideas in mind:

  • One of the most common shortcomings of these guidelines is the fact that they are frequently utilized after they are out of date.
  • Many of the guidelines are prepared by individuals who clearly have a financial conflict of interest.
  • One of the greatest flaws in guidelines is the lack of any scientific support for the actual guidelines themselves.  This is seen in the insufficient data and properly designed and conducted clinical trials.
  • The guidelines can also be attacked in that they do not provide for any degree of personalized medicine i.e., the guideline does not establish the standard of care for the particular case in question.

Good Samaritan Defense

The Good Samaritan defense is created by statutes that protect health care providers from medical malpractice claims where the provider is rendering emergency care in a non-hospital context.
Emergency care is typically defined as unexpected or unforeseen care necessitated by an event requiring immediate action.  Generally the care has to be rendered at the scene of an accident or some other emergency.  The protection provided by these statutes generally extends to ordinary negligence, not to gross negligence.  That is, if the level of negligence of the physician is ordinary or simple negligence then the Good Samaritan defense may protect the provider from liability.  If on the other hand the care rendered was grossly negligent, then the Good Samaritan defense may not apply.

If you have been injured by a health care provider who contends he/she was acting in a Good Samaritan capacity contact us.

Hospital Lawsuits May Be Changing

Hospital lawsuits in Virginia are extremely difficult because hospitals have special protections in terms of confidentiality of their peer review committees and confidentiality of their internal policies.

There are some signs of change in that regard.  In some recent rulings from local circuit court judges, a hospital and radiology group were ordered to produce redacted copies of Employment Agreements with radiologists.  It was felt that the Employment Agreements reflected exactly how radiological findings were to be reported on the radiology written report forms.  The hospital had dictated that the significant findings be reported first so that it was more evident to the clinician as to what was important.  In this particular case the radiologist had not complied with that but rather had put the most significant finding at the bottom of the report.

The trial court ruled that the contract between the physician and the hospital was of importance because the hospital had dictated how the important findings were to be ordered on the radiology reports.

Hospital Lawsuits Involve Standard Of Care Issues

In that sense the hospital was setting the standard of care for the radiologist.  That was felt to be important and therefore properly subject to discovery.

There are also significant issues that arise with hospitals in terms of getting complete copies of their records.  Much of the information that is stored electronically on hospital records is what is called “metadata”.  This type of data reflects when certain entries were made, who made them and who else has reviewed the records.  All of that information can be important but typically it is not produced on the written or “paper copy” of the records that are produced to lawyers when they request those records.  As such some judges in the state of Virginia have been allowing on-site views of the records in order to gather all of that information.  If during the course of the on-site view of the records the attorney feels something needs to be printed out then at least in one case the judge has allowed that information to be printed so that the attorney can assess all of it in written form.

Sexual Assault By Health Care Provider

Sexual assault by health care providers is not unheard of. In reviewing cases of this nature, which may qualify as medical malpractice actions, it is important that the following be considered:

  • Was the sexual assault reported to the authorities?  If not, it will have to be eventually once the client is ready to do so.  If the client is not immediately ready to make such report, then she may need therapy as a prelude to the reporting.
  • Has the client ever been sexually assaulted before and, if so, was there a civil claim associated with it and was there medical and/or psychiatric care provided?
  • Would the client be willing to undergo a polygraph exam?  The refusal to undergo such is a factor to be considered in deciding on the overall merits of the claim.
  • Once the client is ready to report the incident it needs to be reported to the local police authorities, the establishment where it occurred, the primary care doctor for purposes of checking for sexually transmitted diseases and pregnancy and to any mental health care providers that have treated the person.
  • If the assault occurred during the administration of a medical procedure, then it needs to be determined whether or not the hospital had a policy of having a female chaperon present during such examination or treatment.
  • If reported as a medical malpractice action then the carrier may deny coverage or treat under a reservation of rights.

If you have been sexually assaulted by a health care provider or otherwise feel that you are the victim of medical malpractice and feel that you have a basis for making a claim, contact us.

For more information on practice guidelines and other medical malpractice topics, please visit the medical malpractice, pages on this site.

For more information about medical malpractice cases, see the other pages on this site and see also the pages in Wikipedia.

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Contact Us For A Free Consultation

In a Medical Malpractice Case What Does Standard of Care Mean?

Fairfax Injury Lawyer Brien Roche Addresses Medical Malpractice Standard of Care

Brien Roche

In a medical malpractice case what does standard of care mean is a question that should be understood and answered to the client’s satisfaction.  Standard of care loosely means the rule that applies to the healthcare provider’s conduct.  When I say “rule” I don’t mean necessarily a written rule.  Frequently the rule or standard of care is not written but rather is simply a product of one medical expert saying what the standard of care is. 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.

Medical Malpractice Standard of Care-National Standard

In general, standard of care is a standard or rule that applies based upon what the reasonably prudent practitioner in that particular field would do.  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.

In order to establish that standard of care it is necessary in a medical malpractice case to retain a physician who has experience in that particular specialty to testify as to what the standard of care is that the defendant healthcare provider should have rendered.  Typically that expert would also testify as to whether or not the standard of care was then violated.

Medical Malpractice Standard of Care-Objective Standard

As you can see, the concept of standard of care is an important concept.  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 sthttps://www.brienrochelaw.com/wp-admin/options-general.phpandard 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.

Established Standards

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:

  • 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 which has over 2,400 practice guidelines prepared by 300 organizations.  Many of them are prepared by medical practice groups.

Practice Guidelines in Medical Malpractice

In the course of a medical malpractice action, the use of these practice guidelines need to be reviewed with several ideas in mind:

  • One of the most common shortcomings of these guidelines is the fact that they are frequently utilized after they are out of date.
  • Many of the guidelines are prepared by individuals who clearly have a financial conflict of interest.
  • One of the greatest flaws in guidelines is the lack of any scientific support for the actual guidelines themselves.  This is seen in the insufficient data and properly designed and conducted clinical trials.
  • The guidelines can also be attacked in that they do not provide for any degree of personalized medicine i.e., the guideline does not establish the standard of care for the particular case in question.

Good Samaritan Defense

The Good Samaritan defense is created by statutes that protect health care providers from medical malpractice claims where the provider is rendering emergency care in a non-hospital context.
Emergency care is typically defined as unexpected or unforeseen care necessitated by an event requiring immediate action.  Generally the care has to be rendered at the scene of an accident or some other emergency.  The protection provided by these statutes generally extends to ordinary negligence, not to gross negligence.  That is, if the level of negligence of the physician is ordinary or simple negligence then the Good Samaritan defense may protect the provider from liability.  If on the other hand the care rendered was grossly negligent, then the Good Samaritan defense may not apply.

If you have been injured by a health care provider who contends he/she was acting in a Good Samaritan capacity contact us.

Hospital Lawsuits May Be Changing

Hospital lawsuits in Virginia are extremely difficult because hospitals have special protections in terms of confidentiality of their peer review committees and confidentiality of their internal policies.

There are some signs of change in that regard.  In some recent rulings from local circuit court judges, a hospital and radiology group were ordered to produce redacted copies of Employment Agreements with radiologists.  It was felt that the Employment Agreements reflected exactly how radiological findings were to be reported on the radiology written report forms.  The hospital had dictated that the significant findings be reported first so that it was more evident to the clinician as to what was important.  In this particular case the radiologist had not complied with that but rather had put the most significant finding at the bottom of the report.

The trial court ruled that the contract between the physician and the hospital was of importance because the hospital had dictated how the important findings were to be ordered on the radiology reports.

Hospital Lawsuits Involve Standard Of Care Issues

In that sense the hospital was setting the standard of care for the radiologist.  That was felt to be important and therefore properly subject to discovery.

There are also significant issues that arise with hospitals in terms of getting complete copies of their records.  Much of the information that is stored electronically on hospital records is what is called “metadata”.  This type of data reflects when certain entries were made, who made them and who else has reviewed the records.  All of that information can be important but typically it is not produced on the written or “paper copy” of the records that are produced to lawyers when they request those records.  As such some judges in the state of Virginia have been allowing on-site views of the records in order to gather all of that information.  If during the course of the on-site view of the records the attorney feels something needs to be printed out then at least in one case the judge has allowed that information to be printed so that the attorney can assess all of it in written form.

Sexual Assault By Health Care Provider

Sexual assault by health care providers is not unheard of. In reviewing cases of this nature, which may qualify as medical malpractice actions, it is important that the following be considered:

  • Was the sexual assault reported to the authorities?  If not, it will have to be eventually once the client is ready to do so.  If the client is not immediately ready to make such report, then she may need therapy as a prelude to the reporting.
  • Has the client ever been sexually assaulted before and, if so, was there a civil claim associated with it and was there medical and/or psychiatric care provided?
  • Would the client be willing to undergo a polygraph exam?  The refusal to undergo such is a factor to be considered in deciding on the overall merits of the claim.
  • Once the client is ready to report the incident it needs to be reported to the local police authorities, the establishment where it occurred, the primary care doctor for purposes of checking for sexually transmitted diseases and pregnancy and to any mental health care providers that have treated the person.
  • If the assault occurred during the administration of a medical procedure, then it needs to be determined whether or not the hospital had a policy of having a female chaperon present during such examination or treatment.
  • If reported as a medical malpractice action then the carrier may deny coverage or treat under a reservation of rights.

If you have been sexually assaulted by a health care provider or otherwise feel that you are the victim of medical malpractice and feel that you have a basis for making a claim, contact us.

For more information on practice guidelines and other medical malpractice topics, please visit the medical malpractice, pages on this site.

For more information about medical malpractice cases, see the other pages on this site and see also the pages in Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation