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What constitutes ‘deviation from the standard of care’?

There are four legs to a successful medical malpractice case:

First, providers in every case are obliged to honor a duty to the patient. In malpractice cases, providers fail to live up to this duty.

Second, the failure to live up to this duty by providing proper medical care constitutes neglect.

Third, the patient is harmed by this negligence.

Fourth, the provider is liable for the harm and must pay damages.

The key to winning a medical malpractice case, then, is to show that the care given to a patient in a particular case fell well short of what is called the standard of care.

Definitions matter

So a great deal depends on how this phrase ‘standard of care’ is defined.

The law defines proper care as that which is recognized as acceptable and appropriate by reasonably prudent similar physicians. “Similar physicians” has a double meaning:

  • Providers who work in the same specialty area: orthopedic surgeon, endocrinologist, etc. Doctors are expected to practice only within their area of specialty.
  • Providers practicing in the same geographical area. In other times a doctor practicing in a remote area was not expected to practice exactly the same as a doctor at an urban, academic center. This difference has diminished over the years but there is still some leeway given on the basis of location.

Negligence is only provable when it is clear under the law that the standard of care was not met in a given case.

The importance of case law

Medical malpractice cases rely heavily on existing case law – legal precedents that all your attorney to show that the standard of care was not met in cases similar to yours.

There are cases that inarguably show failure on a provider’s part – egregious experiences such as operating on the wrong body part.

But most cases are subtle and complex. You need to work with an experienced medical malpractice attorney that is on top of the type of case you present, and what the outcomes have been in these cases.

Your attorney’s skill in making these four points crystal clear, and showing that the standard of care was not met, is your key to success, whether in the courtroom or at the settlement table.

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