The Standard of Care – What You Must Prove to Recover for Your Losses
When you’re hurt in an accident or experiencing medical problems, you expect, at a minimum, that your condition won’t get worse because of the carelessness of a medical professional. Unfortunately, it happens way too often. Hospitals are often understaffed or don’t take appropriate measures when hiring, training, and monitoring medical personnel. A doctor may fail to order essential lab work or tests, or may misread test results, leading to misdiagnosis or failure to diagnose. Surgical errors, anesthesia mistakes, birth injuries, medication errors—there are countless ways that the negligence of doctors and nurses can cause you to suffer.
When that happens, you have a right to take legal action to recover for all losses and injuries. As a general rule, in personal injury claims, the legal basis for recovering damages (a financial verdict) is negligence. While that holds true with respect to medical negligence or malpractice claims, there are differences in the standard of care required, and, therefore, in what you must prove to successfully convince a jury of your right to compensation.
The Standard of Care in Medical Malpractice Claims
In any negligence claim, the plaintiff (injured person seeking relief) must prove three elements:
- The defendant failed to meet the expected standard of care;
- The failure caused an injury; and
- The injured party suffered losses (medical expenses, property damage, etc.).
In an ordinary negligence claim (not based on medical malpractice), the standard of care is a general one, based on what a reasonable person would do under similar circumstances. Though a “reasonable person” isn’t specifically defined, they are typically described as an “average” person, “common” person, or “person of ordinary prudence.”
Medical professionals are held to a higher standard of care. In a medical malpractice claim, the plaintiff must show that the defendant’s actions did not rise to the level and type of care that (1) a reasonably competent and skilled medical professional, (2) with similar experience and training, (3) would have provided in similar circumstances, (4) while practicing in the same medical community. Unlike ordinary negligence, the standard is not based on what a reasonable person would do, but what medical professionals in the same community reasonably expect of a colleague with the same training and experience.
Establishing the Standard of Care in a Medical Malpractice Claim
Because the standard required in a medical malpractice claim is based on professional skills and expectations, a jury cannot be expected to know what those qualifications are. Accordingly, in a medical malpractice claim, evidence must be introduced to help the jury understand the specific standard of care and determine whether it has been met. In many jurisdictions, this is accomplished by bringing in expert witnesses to testify regarding the standard of care in the medical community. Both sides to a lawsuit can bring in their own expert witnesses.
In about half of American states, when filing a medical malpractice claim, you also must submit a medical affidavit, also known as a “medical affidavit of merit.” The medical affidavit of merit, signed by a medical expert, informs the court and jury that:
- The person signing it qualifies as an expert in the same field as the defendant and either practices in or has knowledge of the standards in that medical community;
- The expert has reviewed the facts of the case being filed with the court; and
- The expert is of the opinion that the defendant in your case did not meet the medical standard of care.
As a rule, the person who signs your affidavit doesn’t have to be a witness in court for you. You can always bring other experts to help establish the standard of care.
A plaintiff can bring some claims based on ordinary negligence and other claims based on medical negligence in the same lawsuit. With the claim based on ordinary negligence, you won’t need a medical affidavit, but you also won’t be able to hold the defendant to the higher standard of care.