Yesterday I discussed how the New York law for medical malpractice as virtually remained unchanged for over a century. This is because the Court of Appeals, the highest court in New York, set forth the standard of care as one being one measuring that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the defendant practices and how a reasonably prudent doctor would have acted in similar circumstances.
Stemming from that rule is the principle that a reasonably prudent doctor must employ their “best judgment” in exercising their skill and applying their knowledge to treat patients and in medicine generally. This “best judgment” rule requires a physician to work within the standard of care, which is flexible and constantly evolving. It achieves this by measuring the best judgment of other reasonably prudent physicians under similar circumstances.
Therefore, it so follows that a doctor cannot be liable for medical malpractice merely because a treatment proves ineffective, fails, or is inaccurate, so long as the doctor is using his best judgment in electing a treatment course. This is measured by looking at what other reasonably prudent physicians in similar circumstances would have done in the exercise of best judgment. Thus, not every instance of failed treatment, or a wrong diagnosis, or a bad result will result in a finding of medical malpractice.
Essentially, a doctor will not be liable for an error in judgment. And a doctor does not guarantee a good result, but only that the doctor will use the skill and learning of an average physician in similar circumstances and use his or her best judgment to try to bring about a good result.
This means that not every unsuccessful treatment is medical malpractice. But this also means that there is a large hurdle for a plaintiff to overcome in a medical malpractice case. The plaintiff needs to establish that the standard of care is, what an average physician in similar circumstances would have done, and why the defendant failed to comply with that standard. A plaintiff also must establish that the mistake was not an error in judgment but a deviation of the standard of care. If the plaintiff can do this, a plaintiff can recover for medical malpractice.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.