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Standard of Care

Once the plaintiff has established that there was a legal relationship with the physician defendant, the 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.

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