Whether a doctor, nurse, or other health care provider committed actionable medical malpractice depends mostly on whether he or she did what was required. In many birth injury lawsuits, a hotly contested point is what the standard of care required, and whether the medical provider acted in accordance with that standard of care.
Standard of Care Defined
The standard of care may vary slightly from state to state, but in general a medical provider is required to use the degree of care and skill which is expected of a reasonably competent medical provider of the same type, acting in the same or similar circumstances.
What this means is that doctors, hospitals and others are judged in comparison to what “reasonably competent” medical providers in similar situations would do. This usually takes into account a number of things, like the available technology, whether the medical provider is a specialist or a general practitioner, what the profession generally has to say about how to act in those situations, and more.
Proving the Standard of Care
In medical malpractice cases, the only way to prove the required standard of care (as well as the negligent health care provider’s failure to meet that standard of care) is through expert testimony. Experts must generally have the same knowledge, experience and education as the defendant medical provider—for example, a nurse cannot typically testify that a doctor was negligent. In some cases, however, a doctor may be able to testify that a nurse was negligent, as long as the nurse’s standard of care was one that the doctor was required to know because of his training, experience and education. In most cases, however, your medical malpractice lawyer will find an expert with credentials very similar, if not identical, to the defendant’s credentials.
For her part, an expert will explain the standard of care to the judge or jury, bolstering her opinion about what is required with some or all of the following:
- The teachings of medical schools and continuing medical education courses
- The publications of the profession, including documents authored by professional associations, respected medical leaders, and textbook authors
- The expert’s own practices and procedures when dealing with a similar situation
- The expert’s knowledge about how other medical professionals handle similar situations
Some states require that the standard of care required of the defendant be established in context of the locality where the defendant practices. This assumes that the standard of care in one area is different from the standard in other areas. Many states are abandoning or modifying this rule, finding that doctors are increasingly trained at medical schools throughout the United States (and beyond), and that such training tends to be uniform and standardized. Additionally, continuing medical education is typically the same from state to state. As a result, many doctors and lawyers believe that there is actually one national standard of care applicable in all cases. Of course, limitations of technology may modify the standard of care expected. For example, a rural hospital without access to advanced laboratory testing equipment may not be expected to act exactly the same as a top-rated hospital with all of the bells and whistles.
The judge or jury, after listening to all of the testimony and reviewing all of the exhibits, will decide what the standard of care required and whether the defendant lived up to that standard. If not, the next step is to decide whether the deviation from the standard of care caused any injury.
Application to Birth Injury Cases
In birth injury cases, your lawyers will contact medical experts early on in the investigation phase to find support for your legal claim. This may require your attorneys to hire obstetricians, obstetrical nurses, nurses, nurse-midwives, anesthesiologists, family practitioners or other medical experts to testify that your medical team did not act as they were required to act under the standard of care.
Medical providers are part of a close-knit community, and it may be necessary for your medical malpractice lawyers to hire medical experts outside of the state. Some doctors are ostracized from their peers when they testify on behalf of injured children in medical malpractice cases. As a result many doctors cannot risk testifying in their own communities.
Contact Us
If your child has was injured during labor, delivery, or shortly after, contact our birth injury lawyers at (440) 252-4399 or online to find out what standard of care was required of your medical providers. If they failed to act appropriately, we can help you to seek justice for your child.