If you are considering a medical malpractice lawsuit, you may have heard the term, “standard of care.” To many people it is nothing more than legal jargon, but it is a fairly straightforward concept and a crucial one, since it often stands as the pivotal legal issue in these kinds of cases. In this article, we'll explain what the medical standard of care is and how it affects a medical malpractice claim.
What is Medical Malpractice?
Simply because a health care professional -- or a facility like a hospital -- makes a mistake, that does not mean medical malpractice has occurred. In order to amount to malpractice, medical treatment has to fall below an accepted medical standard of care, and the sub-standard treatment must result in harm to you, the patient.
In other words, unless the defendant care provider did (or failed to do) something that fell short of the medical standard of care, there is no malpractice. Similarly, if a health care professional did in fact provide sub-standard care, but nobody was harmed by it, there is no malpractice.
More: Medical Malpractice Basics.
Definition of the "Medical Standard of Care"
A typical definition of the standard of care in a medical malpractice case is:
The type and level of care an ordinary, prudent, health care professional, with the same training and experience, would provide under similar circumstances in the same community.
In other words, the critical question in a medical malpractice case is, “Would a similarly skilled health care professional have provided me with the same treatment under the same, or similar, circumstances?” If the answer is, “no,” andyou were harmed as a result of the sub-standard treatment, you may have a medical malpractice case.
How is the Standard of Care Established?
In most medical malpractice cases, you will need an expert to testify on your behalf. This expert (who is almost always a doctor) will usually need to be trained and experienced in the same field as the health care professional that treated you (and who you are now filing suit against).
The expert will need to:
- establish what the standard of care is
- testify as to exactly how your treatment was below the standard of care, and
- testify as to exactly how you were harmed by the sub-standard treatment.
Learn more about the Expert Witness in a Medical Malpractice Case.
In some states, when you file a medical malpractice lawsuit you must also file an affidavit, signed by an expert, stating that your case has merit in the expert's view. This affidavit does not always need to state what the standard of care is. It may merely need to state that an expert has reviewed your case and believes it has merit. This may not be a requirement in your state. A local attorney who specializes in medical malpractice cases will be able to tell you whether this affidavit requirement applies.
Heightened Standard of Care for Specialists
Certain health care professionals are considered specialists in their field. These professionals have usually gone through rigorous training and examinations. Accordingly, they are held to a higher standard of care. Specialists are expected to use the same degree of care that a reasonably competent specialist with similar training and experience would use under similar circumstances.
The following are examples of health care specialties:
- internal medicine
Examples of Medical Malpractice
The following are some of the most common examples of medical malpractice:
- sub-standard trauma care provided immediately following a severe accident
- mistakes monitoring the amount of anesthesia a patient needs
- mistakes made monitoring the heartbeat of an unborn child during labor
- amputating the wrong body part
- failing to account for all sponges and instruments following surgery
- administering medications that are documented to be fatal allergens
- allowing bed sores to form from failing to regularly turn incapacitated patients
- dropping patients due to improper lifting and/or transporting techniques
- failing to diagnose a medical condition during an exam
What Damages Could You Recover?
If you have a viable medical malpractice claim, you may be able to recover the following as damages:
- Medical Bills – This will be limited to those bills which would not have been incurred but for the medical malpractice.
- Lost Earnings – If you missed work due to the medical malpractice, you may recover the amount of income you lost during that time.
- Lost Earning Capacity – If you cannot engage in certain activities because of the harm caused by the medical malpractice, you may be able to recover money to compensate you.
- Pain and Suffering – There is no hard and fast rule for determining what this amount will be, but it will be based on the severity and permanency of the harm you suffered as a result of medical malpractice.
Get more information on Damages in a Medical Malpractice Case.