It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress. ~Mark Twain, Pudd'nhead Wilson's New Calendar, Following the Equator, 1897


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STANDARD OF CARE

The medical malpractice plaintiff must establish the appropriate standard of care. In theory, establishing the standard of care and establishing the breach of that standard are legally separate. In reality, unless there is a factual question about what the defendant did, the proof of the standard of care also proves the defendant's breach. For example, assume that the defendant admits that she did not counsel the patient about prenatal testing. If the patient can establish that the standard of care was to offer this testing, the defendant breached the standard. If, however, the physician claims to have done the counseling, the patient will have to prove both that counseling was the standard of care and that the physician did not do the counseling.

The most common legal definition of standard of care is how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances. This is not simply what the majority of practitioners would have done. The courts recognize the respectable minority rule. This rule allows the practitioner to show that although the course of therapy followed was not the same as other practitioners would have followed, it is one that is accepted by a respectable minority of practitioners. (Respectable is used in both senses.) The jury is not bound to accept the majority standard of care. Jurors may decide that a minority standard is the proper standard and that a physician following the majority standard was negligent.

In most medical malpractice cases, both the standard of care and its breach are established through the testimony of expert witnesses. There are situations in which the plaintiff may be able to establish the standard of care and breach without an expert witness.

RES IPSA LOQUITUR

Res ipsa loquitur means, roughly, "the thing speaks for itself." Courts developed the concept of res ipsa loquitur to deal with cases in which the actual negligent act cannot be proved, but it is clear that the injury was caused by negligence. This doctrine was first recognized in the case of a man who was struck and severely injured by a barrel that rolled out of the second-story window of a warehouse. In the trial of the case, the defense attorney argued that the plaintiff did not know what events preceded the barrel rolling out of the window and thus could not prove that a warehouse employee was negligent. The plaintiff's attorney countered that barrels do not normally roll out of warehouse windows. The mere fact that a barrel fell from the window was res ipsa loquitur; "it spoke for itself," and it said that someone must have been negligent.

Most law students learn about res ipsa loquitur by reading a case about an airplane that disappears without a trace. There is no evidence of negligence, but there is a strong presumption that airplanes do not disappear without some negligence. In medical negligence cases, res ipsa loquitur can be invoked only when: (1) the patient suffers an injury that is not an expected complication of medical care; (2) the injury does not normally occur unless someone has been negligent; and (3) the defendant was responsible for the patient's well-being at the time of the injury. For example, assume that a portable X ray is ordered in an intensive care unit on a young, otherwise healthy patient recovering from peritonitis. After the technician leaves, it is found that the patient has a dislocated shoulder. This is not an expected complication of an X ray, there are no explanations for the injury other than mishandling or failing to restrain the patient properly, and the defendant was responsible for the patient's well-being at the time the injury occurred.

The strategic value of a res ipsa loquitur claim is that it does not require an expert to testify as to the proper standard of care. This has led plaintiffs to try to make res ipsa loquitur claims whenever they are unable to secure expert testimony to support their cases. Many states have limited the use of res ipsa loquitur in medical malpractice litigation, usually to claims such as a surgeon's leaving a foreign body in the patient or operating on the wrong patient. In all other cases, the plaintiff must present expert testimony as to standard of care and its breach.

NEGLIGENCE PER SE

Negligence per se lawsuits are brought by private plaintiffs but are based on the defendant's violation of a law. In these cases the appropriate standard of care is defined by the law that was violated. For the court to accept a negligence per se claim, the plaintiff must show that a law was violated, that the law was intended to prevent the type of injury that occurred, and that the plaintiff was in the class of persons intended to be protected by the law. The plaintiff may claim negligence per se even if the defendant has not been convicted or administratively sanctioned under the law in question. In such cases, the plaintiff must prove that the defendant has violated the law. The plaintiff does not need to prove independently the violation if the defendant has been convicted or had pleaded guilty. (The plaintiff may not use a plea of nolo contendere, that is, not contesting the charges but not admitting guilt.)

Traffic violations are the most common instance of negligence per se. Assume that a driver hits a child while driving at night without headlights. This behavior is illegal, it is prohibited to prevent this type of accident, and the plaintiff is in the class of persons who were intended to be protected. The driver could be found negligent based on the violation of the statute. Conversely, assume that a physician injures a patient while practicing without a current medical license. This will not support a negligence per se claim because medical licensing laws are not intended to protect specific patients from medical malpractice.

The most common prosecutions of physicians for practice-related crimes involve tax and other economic fraud laws. These will not support negligence per se claims in medical malpractice cases because the laws are not intended to prevent patient injuries.

Negligence per se claims are a threat to physicians who disregard laws intended to protect patients, such as the federal provisions on patient dumping and state laws requiring physicians to provide emergency care. Since these laws make it illegal to deny a person necessary emergency medical care, a person refused emergency care suffers the injury the law was intended to prevent. Negligence per se claims also could be brought against physicians who do not obey disease control regulations and laws requiring the reporting of dangerous individuals.

* The above material was excerpted, modified or otherwise prepared by the 'Lectric Law Library from a work by The Medical & Public Health Law Site at http://plague.law.umkc.edu

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