What Constitutes the Standard of Care for Medical Expert Witnesses in Medical-Legal Actions including Medical Malpractice

The standard of care must be fully understood by a consulting medical expert witness who is involved in a medical legal action, particularly medical malpractice.  Let's talk about what constitutes standard of care.  Once a physician/patient relationship has been established, the physician is obliged to diagnose and treat the patient’s illness or injury with “due care”.  Failure to do so constitutes negligence and is actionable.


However, negligence is often defined as the omission to do something which the “reasonable physician” would do, or the doing of something which a reasonable and prudent physician would not do. The concept is that the party claiming damage was owed some duty by the medical provider and that the duty was breached, causing injury.  By analogy, if a store customer buys super-hot coffee and burns his legs when he spills the container on himself, he might allege that the store had a duty to serve coffee at a temperature that would not result in such burns should there be an accidental spill.

The standard the courts have traditionally used is the ”reasonable person” standard.  If the reasonable, prudent person would have avoided the difficulty, the defendant may be held to be negligent.  If the reasonable person would have acted the same way the defendant acted, no negligence can be alleged, even if the resulting injury were serious.

When it comes to the medical profession, the standard is modified and becomes the “duly careful member of the profession”.  The body of negligence law does NOT hold the physician liable for injury to a patient for not using the highest possible degree of care, even if another physician in the same specialty might have provided a higher degree of care. However, the law DOES hold the physician liable for not exercising the requisite skill and knowledge expected of the average practitioner of the provider’s specialty.

Copyright © 2020 - www.emergencymedicineexpert.com & Dr. Barry Gustin