Medical Malpractice: Standard of Care
Black's Law Dictionary defines medical malpractice as “a doctor's failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances.” Establishing a claim for medical malpractice requires defining a standard with which a physician must comply.
Although general negligence may be established by showing a person did not meet the reasonable standard of care, medical malpractice requires evidence that the practitioner failed to act as would a reasonable doctor with the same specialty under like circumstances. Reasonable care is defined as what a reasonable person in that situation and under those circumstances would do. Thus, as stated above, in a medical malpractice setting the standard would be what a reasonable doctor of the same specialty and under like circumstances would do.
But more must be proven. For example, it may not be reasonable to hold a doctor in Smalltown, AZ to the same standard as a doctor at A+ Medical Center. Some states, Arizona included, look to the locale of the doctor and identify the standard met by doctors in similar locations. Thus, a doctor in Smalltown, AZ would be held to a standard similar to that of a doctor in Littleville, AZ.
A classic example of malpractice occurs when a surgeon leaves an object in a patient upon closing the incision. Such facts would almost certainly result in a judgment of malpractice.
Emergency room doctors and emergency personnel such as paramedics are treated with a type of leniency. In emergency treatment cases, Arizona has enacted a much higher requirement for the doctor to be liable. This statute demands that there be “clear and convincing” evidence of treatment below the standard. Thus, if doubt exists as to what the standard of care would be or if the doctor breached the standard of care, the emergency medical practitioner would not be liable. In contrast, medical malpractice cases in non-emergency situations are decided by a preponderance of the evidence, meaning the jury must think it more likely than not that malpractice was committed. The standard of care remains the same while the evidence needed to show a breach of the standard changes.
On the other hand, situations exist when the actual standard of care is much lower. A “Good Samaritan” doctor illustrates just such an exception. The doctor who stops at the scene of an automobile accident to render aid would be held to a much lower standard than might otherwise apply. “Good Samaritan” statutes protect doctors in this position and encourage them to stop and render aid by holding them to a lower standard of care. A.R.S. § 32-1471 states that a licensed health care provider who provides medical care at the scene of an emergency, without charging for that service, would not be held liable for damages stemming from “any act or omission” short of gross negligence.
Both before trial and at trial it can be very difficult to prove what a reasonable doctor should have done. To prove a standard of reasonable care attorneys must use expert witnesses. In medical malpractice cases experts are usually physicians who testify about what treatment they believe should be offered in like circumstances. This can be done in pretrial depositions or can be done at trial through questioning. In any event, such testimony can make or break a case.