Medical Standard of Care
While the law varies from state to state,
medical malpractice is ordinarily not based on strict liability or absolute standards. In
other words, before liability or fault can be imposed against a doctor,
it must be shown that s/he was at least negligent in treating the patient.
Merely because an untoward result has attained does not mean the physician
is guilty of malpractice.
Unless the plaintiff proves that the conduct of the physician fell below
the requisite professional standards, s/he may generally not recover.
Generally, in order to successfully prevail in a claim of professional
negligence against a healthcare provider, a plaintiff must establish the
- There must be a duty owed by the physician to the patient;
- The physician must have violated the applicable standard of care in his/her
- The violation of care must be the direct and legal cause of the injuries
to the plaintiff;
- Damages - injuries to plaintiff.
Expert Testimony in Medical Malpractice Cases
In order to establish that the physician or professional deviated from
the standards in the industry or practice, the plaintiff’s lawyer
must present qualified experts to testify as to the minimum standards
required in the profession. The expert must have properly reviewed the
case, determining what acts and omissions the doctor committed which deviated
from the minimal standards required by the profession.
In the 1940's, 50's and 60's, the requirement of securing a
medical witness to testify against a fellow doctor whose errant practices
caused injury, could prove so difficult as to be an insurmountable obstacle.
Many lawyers had to inform well-deserving clients in malpractice cases
that doctors, as a profession, were practically (not legally) immune from
Illustrative of this is the following comment by the Supreme Court of Kentucky:
“The notorious unwillingness of members of the medical profession
to testify against one another may impose an insuperable handicap upon
a plaintiff who cannot obtain professional proof.” [Butts v. Watts,
(1956) 290 S.W.2d 777.]
Whether this “conspiracy of silence” resulted from professional
courtesy between doctors, fear that insurance premiums would rise, or
fear of reprisal from colleagues or medical societies, it has become much
easier today to obtain the required testimony. Unfortunately, many states
have imposed caps on damages (irrespective of the award by the jury),
and other limitations on the injured parties' right to recover, which
have seriously jeopardized a plaintiff’s right to recover.
Indeed, in many states, medical malpractice actions are the most difficult
types of cases upon which plaintiffs may prevail. Lastly, as if limitations
on a plaintiff’s right to recover were not enough, many more states
place caps on the amount of attorneys' fees the prevailing lawyer
may recover. By dissuading good lawyers from handling medical malpractice
actions through limitation of the amount the lawyer can earn, the victims
are placed at further disadvantage.
Call (415) 688-2176 to
speak with a San Francisco personal injury lawyer.