The jury's job is to answer the question, "What was the standard of care that applies in this particular situation?" says Stephen H. Mackauf, JD, an attorney at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz in New York, NY.
"The law does not set the applicable standard of medical care, nor does the judge or jury," says Mackauf. "The standard of care applicable to a particular medical situation is set by the medical profession."
If there are a range of reasonably acceptable options in a given situation, a physician is free to choose among any of the acceptable options. "A physician has complied with the standard of care if he or she chooses any of the acceptable options," says Mackauf.
Medical malpractice occurs, however, when a physician has deviated or departed from the list of acceptable options and instead is determined to have embarked on a course of conduct that no reasonable physician would have chosen under the circumstances, after a careful investigation and analysis of the available facts.
Higher standard of care
Contrary to what many physicians believe, the "standard of care" is not necessarily the best care a patient could possibly receive, says Joan Cerniglia-Lowensen, JD, an attorney at Pessin Katz Law in Towson, MD. "It's what's reasonable for a practitioner working in similar circumstances," Cerniglia-Lowensen says.
"A lot of times, people take the gold standard and try to make that the standard of care," she says. "Plaintiff's experts often talk about pie-in-the-sky care." These phrases put the burden on the defense to educate the jury that their job is to determine that the physician's care was reasonable, even if not necessarily the best possible care.
"However, the fly in the ointment is that frequently practices will set their own standard, based on internal policies," says Cerniglia-Lowensen. For example, a practice might have its own guidelines for certain disease entities. These guidelines then can become the standard of care that the practice is expected to meet, even if it's higher than the standard practiced by other physicians in the community.
"If the physician deviates from the practice's guidelines, the plaintiff's counsel could say they didn't meet their own standard of care," she says.
Physicians might have a good reason for deviating from their own guidelines, or something typically done in the community, however. If so, "this should be documented to support their rationale," Cerniglia-Lowensen urges. (See story, p. 115, on guidelines and the standard of care.)
- Joan Cerniglia-Lowensen, JD, Pessin Katz Law, Towson, MD. Phone: (410) 339-6753. Email: email@example.com.
- Stephen H. Mackauf, JD, Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York, NY. Phone: (212) 943-1090. Fax: (212) 425-7513. Email: firstname.lastname@example.org.
Scott Martin, JD, Husch Blackwell, Kansas City, MO. Phone: (816) 283-4678. Fax: (816) 983-8080. Email: Scott.Martin@