Standard of Care

In a legal proceeding, standard of care is the standard against which the defendant's conduct is measured. The defendant is expected to act as an ordinary, prudent person with similar training and skill would have acted in a similar situation. If the defendant's conduct falls below this standard, the defendant may be determined to have acted in a negligent manner. Professional malpractice liability involves an act or omission that causes injury, representing a departure from accepted standards of medical care. This comparative standard weighs a particular medical decision against specific medical standards.

The criteria for meeting the standard of care has shifted over time with the demise of the locality rule. The locality rule virtually limited testimony to the standard of care in the defendant's practice area. Now plaintiffs have access to a wider array of previously unavailable testimony from experts outside the local area. The change in the standard has been affected by changes in technology. It is likely that the introduction of new technology has raised what is considered to be customary care to a higher level. The practice of defensive medicine has also influenced the standard of care. To the extent that physicians order additional tests as protection against subsequent liability, the added tests become part of the changing standard of care.

In medical malpractice, the applicable standard of care is established by the medical profession itself, through expert medical review and testimony. In addition to expert testimony, professional standards may be evidenced by regulations promulgated by outside organizations such as the Joint Commission on Accreditation of Healthcare Organizations, conditions of medicare participation, statutes, state health and hospital codes, as well as internal policies and bylaws.

The res ipsa loquitur doctrine (“the thing speaks for itself”) is applicable when the negligence of the defendant is so obvious that it is unnecessary to present expert testimony to prove that there was a breach in the standard of care. Some jurisdictions retain the requirement of expert testimony despite application of res ipsa loquitur. Others require the plaintiff to choose between res ipsa loquitur and the use of expert testimony. An application of the res ipsa loquitur rule involves cases in which foreign objects have been left in the patient's body during surgery.