Understanding the Medical Malpractice Standard of Care

John Fisher
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Stopping Medical Injustice

Everybody has to follow rules or else suffer some sort of consequence.  Medical professionals are no different.  Doctors must not do something that which should not be done; they also must not fail to do something that should have been done.  

This is as general as it gets.  The experienced Kingston medical malpractice attorney knows that even though there are many types of doctors – surgeons, oncologists, radiologists, anesthesiologists, dentists, podiatrists, etc., etc. – the same general responsibility applies.  The profession sets a bar, and the treating professional’s care over the patient must not fall below that bar. 

But of course, nothing in life is exactly that simple.  Doctors and other medical professionals are compared against each other, but not across all levels of training and experience; not across disciplines; not across all localities.  The offending medical professional will be judged in light of other professionals with similar training and experience that faced similar circumstances within the same geographic region.  In short; the law compares apples to apples, not apples to oranges.  If the alleged bad apple provided patient care as would any ordinary and prudent apple, than there has been no negligence.  

Since this is such a subjective standard, how does a patient prove a doctor’s standard of care?  The injured patient certainly will not know the standard.  The patient’s attorney might know, but the court will not take the attorney’s word for it; the rules do not work that way.  

The court will require an expert to testify on behalf of the injured victim.  The expert will most likely be another doctor.  This expert doctor will also have skills, training, and experience similar to the patient’s doctor.  The expert will also be a part of the same geographic community as is the offending doctor.  If the bad doctor was a specialist – a neurosurgeon for example – the standard of care is higher.  These specialists are judged in comparison to each other; the expert doctor in these cases will most likely be another specialist.   

The testimony provided by the expert will explain the standard of care to the jury.  The testimony will also describe how the bad doctor’s services fell below the standard.  And lastly, the expert witness will explain how the bad doctor’s failure caused the patient to become injured.  

Be advised, however, that the doctor’s defense attorney will use experts too.  The defense expert will attempt to disprove the patient’s expert’s testimony.  In the end, determining which expert to believe is a job for the judge and or jury.  

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

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