Physicians loathe many aspects of the American system of jurisprudence. Whenever a malpractice claim is made, a physician feels profound betrayal – by the patient or patient’s family, by any or all other providers who were involved in the patient’s care (especially if they are not named in the suit), by the institution where the alleged malpractice occurred (if there were systems issues involved), and by all lawyers.
Explore This IssueACEP News: Vol 32 – No 05 – May 2013
However, by far the most stinging betrayal that is sensed by physician defendants is that perpetrated by the opposing expert witness.
Most physicians first are drawn into serving as expert witnesses when an attorney calls to discuss a case and asks for assistance. If they agree to evaluate a case, many do so with no real understanding of what is required by law of an expert. The attorney may state that what is needed is merely an opinion regarding the standard of care, which seems straightforward enough. If you poll practicing physicians, they usually believe that they know the standard of care within their specialty. However, many do not understand that the legal standard of care is quite a different thing from what they may have been taught is the most appropriate medical care for any given condition.
Most states have a definition of the standard of care that is some version of “that degree of care that would be shown by a reasonably competent practitioner practicing under the same or similar circumstances.” Not that degree of care we teach you to practice or that is promulgated in textbooks.
This legal standard is, in fact, a very low bar. But the law in medical malpractice cases says that a physician defendant who meets this standard is not guilty of negligence. I have found that defense attorneys are very quick to educate their potential experts on this point, but that plaintiff attorneys may never define the term legally.
After all, if the care provided was reasonable, there may be no award even when there was a catastrophic outcome. So, goal-oriented attorneys often push to label reasonably competent care as substandard care. Or sometimes, substandard care as reasonably competent care – it cuts both ways. Certainly, no one taught me that there was a substantial difference between what we would believe to be a medical standard of care and the legal definition of the medical standard of care.