Lawyers consider several kinds of evidence to prove that the standard of care was-or was not-met

July 18, 2008

Lawyers consider several kinds of evidence to prove that the standard of care was--or was not--met.

Key Points

When a patient files a medical malpractice claim, his first order of business-addressed in the July 4 "Malpractice Consult" column (available at http://www.memag.com)-is to prove that the physician had a duty to him. Next, the plaintiff must show that the doctor breached that duty by not meeting the standard of care. Doctors haven't met the standard of care if they:

To determine whether a duty has been breached, judges and juries look to accepted practice standards of physicians in the relevant specialty-which, depending on the circumstances, might not be the defendant's specialty. For example, an internist who reviews a chest X-ray and makes decisions based on his finding might be measured against the standard for radiologists.

Good documentation, of course, is key. A physician defendant who has carefully described his reasoning process will have an easier time demonstrating that an error didn't reach the level of malpractice.

Lawyers lay out the evidence

In their efforts to prove that the standard of care was-or was not-met, defense and plaintiffs' lawyers typically consider several kinds of evidence:

We'll focus on the final two elements in a malpractice claim-whether a breach of duty caused patient injury, and whether damages were sustained as a result-in the August 1 "Malpractice Consult."

The author, who can be contacted at lj@bestweb.net
, is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues. This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
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