Posted by Bill Sandweg on 06 September 2021.
Everybody talks about medical malpractice but when you ask them about it, you find people have different ideas about what it really is. Given its legal definition, this difference of opinion is not surprising. Depending on whom you ask, you will get different definitions of medical malpractice.
If you ask a lay person what they think malpractice is, you will likely hear that it occurs when a doctor or nurse makes a mistake. Allthough that is a good answer, it has a number of problems. In the first place, it doesn’t take into account whether the mistake causes an injury or not. At least from a legal perspective, a mistake that does not cause an injury is not medical malpractice, at least not medical malpractice you can sue over. It also doesn’t tell us what a mistake is or how to know when one occurs.
If you ask a doctor what she or he thinks is medical malpractice, you may hear that anything they do will be called malpractice by some crooked lawyer trying to make a buck. From their point of view, doctors may make mistakes from time to time in trying to help people but these are not really malpractice, or at least not the kind of mistake that should give rise to a lawsuit.
If you ask a lawyer, you may be told that medical malpractice is conduct which is “below the standard of care” and which causes an injury that would not have occurred in the absence of the conduct. The conduct may consist of either action or inaction. The “standard of care” is the tricky part of this definition and one of the reasons medical malpractice cases are so hard to win.
The “standard of care” is what a reasonable and prudent healthcare provider would do in the same or similar circumstances. What constitutes the standard of care is almost never written down. It is what the healthcare providers say it is and it is always changing as medicine changes and doctors learn more and change the way they do things.
If there are two options a provider has when faced with a problem and half the providers would go with the first option and the other half with the second option, by definition, choosing either option cannot be below the standard of care. In fact, if there is an option which is favored by even a minority of providers, that minority option is acceptable and choosing it is not below the standard of care.
When I bring a lawsuit against a doctor, I can count on the doctor saying two things: (1) “Whatever I did or didn’t do was in compliance with the standard of care”; and (2) “Whatever happened to you had either already happened by the time I cared for you or was going to happen no matter what I did.”
The doctor always says that she or he complied with the standard of care. They get to tell the jury that they complied and get to explain why they did what they did and how it was be best possible choice under the circumstances. This will always be an extremely well-rehearsed answer they have worked out with their defense lawyer. They also get to bring in another doctor in the same specialty to agree that what they did was in compliance with the standard of care. As the attorney for the patient, I also get to bring to court a doctor in the same specialty who will explain to the jury that what the defendant doctor did was below the standard of care.
For those of you who have trouble counting, I will add it up for you. The defendant doctor gets two doctors to say that what she or he did was in compliance with the standard of care while the patient gets only one. Two to one are not good odds when the question is what would a reasonable and prudent doctor do under the same or similar circumstances. It makes it really easy for the jury to conclude that the two doctors who say there was no violation of the standard of care are right and the patient’s doctor-witness is wrong.
So in the final, legal analysis, medical malpractice is what the doctors say it is and what the jury says it is. Nothing else really matters.