DO PHYSICIANS NEED TO BE PERFECT?
Of course not. You do not need to be perfect, but how good do you need to be to avoid committing medical malpractice? I often get asked this question from my physician colleagues. I’ll tell you what I tell them, “You need to practice within the standard of care.”
Your next question should be what is the “standard of care?” If you consult legal and medical texts, you will find many versions of the definition. They can be summed up to mean that you should practice medicine as would any other physician in your field who encountered the same circumstances. You only need to be average. That’s right, average. That’s the standard.
Here's an example. The law sets a higher standard for a person driving a car. A driver is motoring down the roadway with his window open when a wasp flies in and stings him on the face. He screams in pain, flails his arms and loses concentration resulting in a rear-end collision with the car in front of him that had slowed to a stop. The driver affected by the wasp bite will be liable for any damages that result from that collision. A driver is held to a very high standard while driving. On the other hand, a doctor need only be average (A letter grade of C in schoolboy terms) to avoid being liable for a bad outcome. He need only do what other similarly situated doctors would do under the same circumstances.
There are, what some may call, exceptions, to the above. For example, if you are a family physician who delivers babies, and practice in an area like Southern California, where there are many obstetricians, you will be held to the standard of care for an obstetrician in Southern California, not a family physician. If you practice in a very rural area where there are no or a limited number of obstetricians, you will be held to the standard of care for a family physician who practices obstetrics.
Your next thought is probably about who decides the standard of care. The answer is expert witnesses. They provide opinions based on what the perceived standard care is. Notice I used the plural (expert witnesses). I did so because the plaintiff will have his expert witness, and the defendant will have her expert witness. The official duty of an expert witness is to provide the court (judge and jury) with unbiased and impartial education and information that a lay person would not be expected to have. If your intuition is screaming out that the plaintiff’s expert witness and the defendant’s expert witness will favor the side that hired them, you are correct. This is why expert witnesses are often called “hired guns.” There is always one out there, for the right price, who will provide whatever opinion an attorney wants. The resulting battle of the experts, each contradicting the other, leaves the jury to decide who to believe.
Aside from the obvious bias problems, the expert should theoretically base his opinion on what he knows from his experience, education, and training as applied to the community in which the defendant physician practices medicine. This means that a qualified expert should be very familiar with the field of medicine and how the local physicians in the community actually practice. A favorite tactic of plaintiff attorneys is to get the plaintiff’s expert on the stand and start by getting him to agree to statements like the following: “You are an expert in orthopedic surgery, correct? Your expertise comes from decades of practicing orthopedic surgery at some of the best hospitals in the county, correct? You have published well over a dozen peer-reviewed research papers on orthopedic surgical techniques, did you not? You would never have cared for the patient the way the defendant did, correct? Being an esteemed orthopedic surgeon by reputation, we would not expect the defendant to have met your standard, which is quite high and above the level of care expected in the community. However, doctor, as an expert, do you feel the defendant met the average level of competency, otherwise known as the standard of care, in your community?
You see where I am going with this. An expert should be a respected physician, and, if possible, an authority in his field so that he or she can explain to, and actually teach, the jury what they need to know about medicine to make a thoughtful decision. The expert should also know what an average physician in the community would have done and explain that to the court as well. Unfortunately, the entire process is tainted by the hired gun effect. In the real world, some doctors make a side business out of being medical experts, often siding with the legal team that “hired” them, thus creating the potential for strong bias, otherwise risking not being called again by the same law firm. Most juries don’t understand the obvious conflict of interest; that complicates the process for the defending physician.
It should ease your mind a bit that a driver on the road is held to a near-perfect standard, while a physician is only held to an average standard. As physicians, we are expected, however, to use all of our many years of experience and knowledge practicing medicine on a daily basis to do the right thing. When we do not do so, our actions may fall below the standard of care.
Paul J. Molinaro, M.D., J.D. is a practicing physician and a practicing attorney. Since 2024, he has focused on mediating medical malpractice and personal injury cases for other attorneys and their clients. The above is not intended to, and does not constitute, medical or legal advice and does not create a doctor-patient or attorney-client relationship.
Fransen & Molinaro, LLP
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