One of the pivotal questions in a medical malpractice lawsuit: Did the healthcare provider deviate from the "standard of care" (also known as the "standard of good medical practice")?
According to the American Bar Association:
"Medical malpractice is negligence committed by a professional health care provider—a doctor, nurse, dentist, technician, hospital or hospital worker—whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients."
Before addressing the issue of whether a healthcare provider deviated from the standard of good medical practice, a medical malpractice attorney must first establish: What is the standard of care for patients with similar demographic characteristics being treated by similar medical practitioners in a particular geographic area?
One of the challenges for medical malpractice plaintiffs and their attorneys: The standard of care isn't necessarily spelled out in a medical textbook or in state laws. And it can vary from region-to-region, year-to-year and patient-to-patient. Why does it vary? For several reasons.
Standards of care change over time. Take, for example, the guidelines for breast cancer screening. In 2002, the U.S. Preventive Services Task Force (USPSTF) recommended that all women age 40 and older receive a mammogram every year or two. In 2009, the USPSTF updated its recommendations to say that women aged 40 to 49 should not have routine mammograms if they are not at a higher risk for breast cancer.
Standards of care vary depending on a patient's age, sex and race. Older women are at greater risk of developing osteoporosis than younger women or older men. Additionally, white and Asian women are at greater risk than women of other ethnicities. Consequently, the screening recommendations are different for older women than they are for men and younger women.
Standards of care vary depending on the type of medical practitioner. Specialists are held to a different standard of care than general practitioners. For example, the American Bar Association says, "In deciding whether your heart surgeon was negligent…a jury will be told to rely on expert testimony to determine what a competent heart surgeon would have done under the same or similar circumstances. A specialist, like a heart surgeon, is held to a higher standard of care—that of a specialist—than would be expected of a nonspecialist."
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