Medical malpractice can result from actions or failures to act, however the main cause is negligence. Generally, negligence is not exercising reasonable care or doing something wrong and is based on the “reasonable person” standard. If, under the circumstances, a reasonable person would have done an action, than the failure to do that action is negligent. On the other hand, if a reasonable person would not have done an action, then performing that action would be negligent. However, this is not the standard New York courts use to define the negligence of a health care provider. In medical malpractice cases, the plaintiff needs to show that the heath care provider failed to exercise the proper standard of care.
What is the Standard of Care?
In most medical malpractice cases, their success or failure hinges on whether the health care professional was negligent in their treatment of, or failed to treat, the patient. The measurement used to determine medical negligence is the medical standard of care for the specific treatment setting in which the patient was injured.
Typically, the medical standard of care is defined as the “level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community would have provided under the circumstances.”
Who Testifies as to the Standard of Care?
In almost every medical malpractice lawsuit an expert medical witness testifies as to what the medical standard of care was under the circumstances. The expert witness will also testify as to how the doctor’s deviation led to the plaintiff’s injuries.
How is the Standard of Care Determined?
In New York, the standard of care is determined by the locality rule. Under this rule, the physician is not measured against every physician in the country. Rather the measurement is against other physicians in their local area of practice.
Under the locality rule, it is necessary for the injured patient to find an expert medical witness who is familiar with the standard of care in the community where the doctor practices, or a similar community. Unfortunately, this can be difficult and a victim who cannot find a physician familiar with the standard of care to testify as an expert medical witness may not be able to proceed with their case.
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