Did MD fail to give new treatment? It might be just the evidence patient needs to sue

Standard of care is issue in court

A plaintiff attorney successfully argued that a teen-ager with a head injury, who was admitted to the neurological intensive care unit at a Level One Trauma Center in Washington, DC, should have had continuous intracranial monitoring as this was the legal standard of care, despite some compelling evidence to the contrary.

“The hospital did not have the equipment to perform such monitoring, and at the time, less than 50% of the Level 1 trauma centers had the capability to perform such monitoring,” says Michael M. Wilson, MD, JD, a Washington, DC-based health care attorney.

The capability now is relatively standard, but it was not the norm at the time of case (2003), Wilson explains. “However, the plaintiff successfully argued that the defendant hospital should have used this new technology to treat such a patient and that it would have prevented his newly acquired brain damage from happening,” he says. “The case settled for an amount in the high seven figures.”

Madelyn S. Quattrone, Esq., a senior risk management analyst at ECRI Institute, a Plymouth Meeting, PA-based organization that researches approaches to improving safety, quality, and cost-effectiveness of care, says the standard of care is “a fluid concept.” (See related stories, below, on what constitutes the standard of care, and how documentation can prove the standard of care was met.) “This is where the concept of medical judgment arises. Some physicians, by their nature, may tend to more slowly adopt newer treatment modalities, waiting until the peer-reviewed medical evidence is more convincing,” she says.

A physician who is an early adopter of new techniques or treatment modalities might come off as arrogant to a jury or, on the other hand, might be perceived as a doctor who is “on the ball” and offered the patient the best that modern science can offer, says Quattrone.

Similarly, a physician with a more conservative approach might be seen as wise and prudent or might be cast as a doctor who is out of touch with developments in the field. “There are a myriad of reasons why a physician may be reluctant to adopt a new treatment modality or use a newer approach to treatment that is not yet established as the standard of care in the profession,” says Quattrone.

The standard of care in a medical malpractice case is situation-specific, and while a jury ultimately determines whether the standard of care was met, the evidence that a jury uses to make that determination is largely provided by the expert witnesses, says William Sullivan, DO, JD, FACEP, an emergency physician at University of Illinois Medical Center in Chicago and a practicing attorney in Frankfort, IL. “The standard of care is a ‘reasonability’ standard,” Sullivan adds. “It does not require that physicians practice as the leading medical practitioners might practice, and does not require that physicians practice ‘perfect’ medicine.”

Alternative treatments

To avoid a “he-said/she-said” dispute during litigation, Wilson recommends that physicians take these steps:

  • Document the various alternative courses of treatment, and the significant risks and benefits of each.
  • Have the patient sign the document and acknowledge that he or she has selected the treatment to be used after receiving the information concerning the alternatives.

“This is particularly useful where one or more of the alternatives is new or experimental, or where there is a significant divergence of professional opinion as to the course to be followed under the circumstances,” says Wilson.

In general, the more the treating physician documents that accurate information was provided to the patient concerning the reasonable alternatives and the risks and benefits of each, and that the patient made an informed decision, the more defensible a claim will be, says Wilson. Quattrone says, “The issue at trial often boils down to the reasons why the physician used a particular treatment approach.”

She says this issue raises questions such as “Was the physician aware of alternative treatments and their risks and benefits?” “Can the defendant physician clearly articulate to a jury why he or she believed the treatment was appropriate for the patient’s condition?” “Can the defendant physician’s reasoning in the particular case be supported by the opinion of a credible expert witness?”

In some states, juries are instructed that a physician is allowed to exercise his or her judgment regarding the treatment modality employed, even if it turns out in retrospect to be the “wrong” choice, explains Quattrone. “This is often referred to as the `two-schools-of-thought doctrine,’” she says.

The chosen treatment modality might be the preferred choice of a significant minority of providers, or it might even be considered a developing practice, such as an off-label use of a medication or an innovative option with a sound scientific and clinical rationale.

“Importantly, when this doctrine is applied, the defendant physician bears the burden of proving that a ‘two-schools-of-thought instruction’ is appropriate,” says Quattrone. “This makes it different from the typical malpractice case, where the plaintiff bears the burden of proof and the burden of persuasion.”


For more information on the legal standard of care, contact:

  • Madelyn S. Quattrone, Esq., Senior Risk Management Analyst, ECRI Institute, Plymouth Meeting, PA. Phone: (610) 825-6000 ext. 5151. Fax: (610) 834-1275. Email: mquattrone@ECRI.org.
  • Linda M. Stimmel, JD, Wilson Elser, Dallas. Phone: (214) 698-8014. Fax: (214) 698-1101. Email: linda.stimmel@wilsonelser.com.
  • William Sullivan, DO, JD, Frankfort, IL 60423. Phone: (708) 323-1015. E-mail: wps013@gmail.com.
  • Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. Fax: (202) 280-1414. Email: wilson@wilsonlaw.com.

Who is it that defines legal standard of care?

The definition of “standard of care” essentially comes down to a battle of the experts, with each side proffering testimony from their expert as to the standard of care that they contend should have been followed, says Michael M. Wilson, MD, JD, a Washington, DC-based health care attorney.

“It is helpful to have treatises or journal articles to support the expert’s opinion, but these are not essential,” says Wilson. “Because of the publication and review process, they necessarily lag behind the current standard of care, and treatises are out of date the minute that they are published.”

Expert witnesses will contend which course of conduct would have been most beneficial to the patient, says Wilson, adding that the legal definition of the “standard of care” varies according to state law. In the District of Columbia, for instance, the standard of care is the national standard of what a physician of the same specialty should do under the circumstances.

“Therefore, it is not based upon a hypothetical poll of physicians in which the test is what course of treatment is most commonly followed, or what course is well-established, or what course is newer,” says Wilson. “The standard is what a physician should do under the circumstances.”

Is it admissible?

The admissibility of expert testimony regarding the standard of care varies based upon state law, says William Sullivan, DO, JD, FACEP, an emergency physician at University of Illinois Medical Center in Chicago and a practicing attorney in Frankfort, IL.

Federal courts and most state courts follow the Daubert standard, which requires that judges examine evidence to determine whether the evidence is relevant, reliable, and derived from sound scientific methodology.1 A minority of state courts follow the Frye standard, which states that scientific evidence is only admissible if the principle upon which the evidence is based has gained “general acceptance” within the field.2

In determining whether expert testimony is admissible under a Daubert standard, the Supreme Court stated that judges may inquire about whether the evidence has undergone empiric testing, whether the evidence has been peer reviewed and/or published, and the degree to which the expert’s theory has been accepted by the relevant scientific community, says Sullivan, pointing to research showing that new innovations typically follow a pattern of acceptance.3

A small minority of ‘innovators’ might propose a new theory, a somewhat larger minority of ‘early adopters’ implement that theory, and then two-thirds of the community are split evenly between ‘early majority’ and ‘late majority’ of adoption of a concept, he explains, and about one in seven people are considered ‘laggards’ who are hesitant to adopt even proven innovations.

“A prudent risk management strategy may be to avoid being an ‘innovator’ or a ‘laggard,’ and to weigh the risks and benefits of being an ‘early adopter,’” says Sullivan. “Should a patient suffer a bad outcome due to a relatively new treatment, a plaintiff attorney would likely argue that ‘innovators’ are being reckless with patient care and that laggards’ are out of touch with patient care.”


  1. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
  2. Frye v United States, 293 F 1013 (DC Cir 1923).
  3. Rogers, E. M. (2003). Diffusion of innovations (5th ed.). New York, NY: Free Press.

Your chart can prove standard of care wasn’t breached

A surgeon provided a telephone order to nurses after viewing a film from home after being called from a hospital late at night regarding a change in a patient’s condition post-surgery. While the care was appropriate, the physician didn’t document these interventions, says Linda M. Stimmel, JD, an attorney at Wilson Elser in Dallas.

“This case resulted in a lawsuit, and there were no records from the hospital to show the physician accessed the chart remotely,” she says. “That omission was problematic enough, but in addition, the physician’s charting only stated the order — not that the chart was viewed remotely.”

The patient’s chart did not make any mention of the physician’s assessment of the film, which was the reason for the order, Stimmel explains.

The case was difficult to defend because no assessment was charted, despite the fact that the physician was reasonable and prudent in reviewing of the film and differential diagnosis, she reports. “If the physician had charted that the film was reviewed, it would have helped to defend the case,” she says. “A jury usually believes charting at the time of the occurrence.”

The most consistent way for physicians to show they met the appropriate standard of care is to make sure the assessment, differential diagnoses, treatment, and results are clearly charted, advises Stimmel.

In another malpractice lawsuit involving a physician who met the standard of care but was unable to prove it, an obstetrician was receiving updates on a laboring patient by “texts” from the nurse, but failed to document the texts. “The information in the texts was never charted by either the nurse or the physician,” says Stimmel. “The physician and the hospital were sued for lack of monitoring of a patient who had a bad birth outcome. It became very difficult to prove the physician met the appropriate standard of care.”