What is the Standard of Care?

Occasionally, MICA members call the Risk Team seeking answers to these questions. Callers may describe a hypothetical patient care situation in detail and then ask what the standard of care requires under those circumstances.

MICA’s Risk Consultants have varied backgrounds and can offer guidance on a wide variety of risk mitigation topics. However, as frustrating as it is to callers, this is one question MICA Risk Consultants cannot answer. To help physicians and advanced practice providers (APPs) understand why, in this article we offer a basic explanation of:

• • how “standard of care” is defined in a malpractice lawsuit,
    
    
  • what evidence is used in lawsuits to “prove the standard of care,” and
    
    
  • who decides whether the defendant physician, NP, or PA met the standard of care.

How is “Standard of Care” Defined in a Medical Negligence Lawsuit?

To prevail in a medical malpractice case, plaintiffs must prove:

• • The defendant owed a duty of care to the plaintiff (usually, this means demonstrating that a physician/NP/PA-patient relationship existed);
    
    
  • The defendant health care practitioner breached the duty (i.e., breached the applicable “standard of care”);
    
    
  • The breach “proximately” caused injury to patient (i.e., “but for” the breach the patient would have avoided injury); and
    
    
  • The amount, with reasonable certainty, of recoverable damages the plaintiff suffered because of the medical negligence.

According to Arizona’s Medical Negligence Jury Instructions, the “standard of care” is that degree of care, skill, and learning that would be expected under similar circumstances of a reasonably prudent health care provider in Arizona of the same medical specialty. Nearly identical versions of this definition are used across most other states including Utah, Montana, and Nevada.

Who Decides What the Standard of Care Requires and When Do They Decide That?

Most medical malpractice cases are resolved through settlement or outright dismissal. Few cases make it all the way to trial. If a case settles or is dismissed prior to trial, no one decides the issue of whether the clinician met the standard of care.

In cases that go to trial, the fact finder decides what the standard of care requires and whether the defendant clinician met the standard of care. Fact finders make this decision at the end of the trial, after hearing all the evidence presented by the plaintiff and defendant(s).

In a jury trial, the jurors are the fact finders. When plaintiff and defendant(s) are finished presenting evidence and have given closing arguments, the judge instructs the jurors on the applicable law they must apply during deliberations. At this stage, the judge informs the jurors of the legal definition of “standard of care.”

In a bench trial, there are no jurors. Instead, the judge is the fact finder and he/she applies the applicable law to the evidence presented to reach a decision. Jury trials are far more common than bench trials in malpractice lawsuits because, with few exceptions, clinicians and their attorneys want a group of jurors from the community to decide the case instead of a single judge.

In the context of a licensing board investigation, board members decide what the standard of care requires. They do this after reviewing all the evidence gathered during the investigation phase, considering any testimony provided during a formal interview, and obtaining opinions from a board medical consultant.

How Do Jurors Decide What the Standard of Care Requires?

Many jurors are laypeople without medical training. Most states recognize that laypeople cannot determine what the standard of care requires or whether there was a breach of the standard of care without testimony from experts in the field. Therefore, with few exceptions, a plaintiff must present an expert witness of the same medical specialty as the defendant who will testify what the standard of care required in the clinical situation at issue. The plaintiff’s expert will also explain to the jury how the defendant clinician deviated from the standard.

In response, the defendant clinician usually will testify that he/she met the standard of care and explain why. In addition, the defense will offer a standard of care expert who will rebut the criticisms of the plaintiff’s expert, explain to the jury what the standard of care requires, and affirm that the care the defendant rendered was appropriate.

Besides expert witness testimony, plaintiffs will often introduce additional evidence (testimony or documents) to support the theory that the clinician breached the standard of care. A plaintiff’s standard of care expert will use this additional evidence to support his/her opinions. Examples of such evidence include the following:

• • In a prescribing case, a plaintiff’s attorney might introduce documents showing there was an FDA black box warning concerning the drug at issue. The plaintiff-patient would testify that the clinician did not mention the warning during the informed consent conversation. The plaintiff’s standard of care expert would testify that this lack of disclosure was unreasonable and violated the standard of care.
    
    
  • A plaintiff’s attorney might introduce documentation issued by physician specialty organizations (ACOG, AUA, etc.) containing “recommendations” about best practices. The attorney would try to get the physician to agree during testimony that he/she belongs to the organization and was aware of the recommendations but provided care that deviated from the recommendations. The plaintiff’s standard of care expert would likely testify that those recommendations “set” the applicable standard of care.

In both examples, the defense attorney would introduce evidence to counter the plaintiff’s arguments.

At the close of trial, jurors are tasked with considering evidence presented by both sides and assessing and weighing the credibility of the testimony and documents. Based on their analysis, jurors decide what the standard of care required and whether a breach occurred. If they find a breach, they must determine whether the breach proximately caused the alleged injuries.

Standard of Care Determinations Made in Hindsight

When expert witnesses form opinions and fact finders make determinations about the standard of care, they analyze the evidence in retrospect. Knowing the outcome of the medical events, they have the benefit of hindsight when deciding what the physician or APP should have done in the moment to comply with the applicable standard of care.

Because of the possibility of hindsight bias, clinicians often find this unsettling and maybe even unfair. In addition, they sometimes ponder, “how can I minimize my medical professional liability exposure if I don’t know ahead of time “what the standard of care requires.”

Anticipating “What the Standard of Care Requires?”

Although frustrating at times, physicians and APPs who have the foresight to think about these issues while caring for patients have a head start on risk reduction. For example, armed with a basic understanding of the concepts discussed in this article, clinicians can engage in self-analysis that may help them avoid or at least strengthen the defense of any potential future negligence claims. The analysis might include questions like:

• • What are others in my same specialty doing in this situation?
    
    
  • If a lawsuit were filed arising out of this care, could my defense attorney find someone in my specialty who would defend my decision(s)/care as reasonable?
    
    
  • Have I clearly and adequately documented my thought process and rationale underlying my treatment decisions?