Medical malpractice can be caused by various actions or failures to act, but the main cause of medical malpractice always boils down to negligence. This is because malpractice is simply a fancy word for negligence. So, medical malpractice is the same thing as medical negligence.
In general, negligence means not exercising reasonable care or doing something wrong. Negligence is based on what lawyers call the "reasonable person" standard. If a reasonable person would have done a certain action, then not doing that action would be negligent. Alternatively, if a reasonable person would not have done a certain action, then doing that action would be negligent.
However, in medical malpractice cases, most courts do not use the reasonable person standard. In medical malpractice cases, most courts define negligence as a health care provider’s failure to exercise the proper standard of care. In this article, we'll explain what that means.
If you have a medical malpractice case (or think that you might have a medical malpractice case), you may have heard of the concept of standard of care, but what does it actually mean?
The first thing to know is that standard of care is a legal term. It is not a medical term. That means that it is primarily lawyers, not doctors, who use the term. In general, the only times that most doctors talk or think about the standard of care is when they are testifying in court on medical malpractice cases or when they are attending medical malpractice seminars.
Standard of care means the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the medical knowledge that is available to the physician. Another way to describe the term is that the standard of care is based on the customary practices of the average physician, i.e., what the average physician would customarily or typically do in similar circumstances.
Remember that the reasonableness standard is the general negligence standard, and physicians are judged by the customary practices of the average physician standard. They certainly sound the same. What really is the difference?
The difference arises in the context of legal liability. Physicians are afraid that lay people, including patients and jurors, might interpret reasonable care as ideal, or perfect, care, and physicians cannot give perfect care.
Physicians know that most medical procedures and treatments involve some risk and/or complications, and they don’t want patients thinking that all complications are the result of negligence. Certainly, many complications are the result of negligence, but many other complications just happen. So physicians don’t want their patients (and the general public) thinking that ideal care is a full recovery, and thus anything other than a full recovery must be imperfect, unreasonable, and/or negligent care that could amount to medical malpractice.
One good example of complications in standard medical treatment is anesthesia. The administration of anesthesia always involves risk. There is nothing that even the best anesthesiologist in the world can do to reduce the risk of anesthesia to zero. Sometimes the anesthesiologist can do everything by the book, and the patient will still have a bad reaction to the anesthesia.
Another way to look at the difference is to compare the legal and medical viewpoints on standard of care. While physicians tend to believe that reasonable care includes the customary practices of the average physician, the legal viewpoint is that reasonable care and the customary practices of the average physician are separate standards of care, although with some overlap.
Despite what physicians may want, some states have been moving toward the standard “reasonableness” definition for determining medical malpractice. Then, still other states have a modified definition of "standard of care." They use what is called the "second school of thought" or the "respectable minority" definition, in which doctors and lawyers recognize that there may be more than one acceptable method of delivering care to a patient in a given situation. If you have specific questions about how your state defines standard of care, or you just want to understand your options if you think you have a viable medical negligence case, you should contact a qualified medical malpractice attorney.