Posted by John Ager on 04 May 2016.
Standard of Care
In a medical malpractice case, it is necessary for an injured party (the plaintiff) to prove that a healthcare provider (the defendant), was negligent. In order to prove that a defendant was negligent, the plaintiff must prove that the defendant’s treatment fell below the standard of care (“SOC”). The SOC requires all health care providers to act reasonably and provide average care. Average care is a “C-” in grade school terms. A defendant falls below the SOC when the defendant either (1) fails to do something that a reasonable healthcare provider would have done, or (2) does something that a reasonable healthcare provider would not have done. One must always bear in mind that a bad outcome does not mean a healthcare provider was negligent. Bad things happen even when a patient receives the best possible case.
The SOC is established through expert witness testimony. Any expert witness who testifies about the SOC must practice in the same area of medicine as that of the defendant. For example, where negligence is alleged against an anesthesiologist, an expert witness testifying about the SOC also must be an anesthesiologist. Similarly, when a defendant is board-certified, indicating the defendant has been recognized for his or her expertise, an expert witness also must be board-certified. SOC experts can rely upon a variety of sources of information to support their opinions. Usually, it is some kind of medical literature, like an article, textbook or published policy.
A plaintiff must have a SOC expert witness testify that, more likely than not, the defendant fell below the SOC. This is called the plaintiff’s burden of proof. A plaintiff may only call one expert to testify that a defendant fell below the SOC. The defendant has no burden of proof and, therefore, is not required to have SOC expert witness testify that he or she met the SOC, but almost always will. In addition, a defendant may also testify as an expert witness that he or she met the SOC. One expert for the plaintiff versus two for the defendant gives the defendant an advantage.
Proving that a defendant failed to comply with the SOC can be difficult. Defendants often take the position that there is more than one reasonable approach to treat a medical condition. And, there usually is. Therefore, just because a defendant handled a situation differently from the way the plaintiff’s SOC expert says it should have been handled does not mean the defendant was negligent.
In addition, jurors’ decisions are usually based on what position sounds more reasonable or which expert witness they find more trustworthy. This is true of all experts. Therefore, when the experts are evenly matched and the jurors can’t decide whom to believe, the jury will usually conclude that the plaintiff failed to meet the burden of proof the defendant will win. Therefore, it is exceedingly important to have strong SOC expert testimony, as well as a sensible and easy to understand explanation of what went wrong. Our firm has excellent relationships with SOC experts across a wide variety of practice areas.
Here is a detailed explanation of the other two basic elements of a medical malpractice claim:
