In medical malpractice cases, there will be a mix of local and national standards. As a rule, the injured patient (or far too often the surviving loved ones) must meet both.
New Mexico’s rules state that the standard of medical care is governed by the standard of care in the locality involved. However, due to the nature of modern medicine, most medical care will be governed in large degree by national standards.
Local Medical Malpractice Standards
Medical malpractice in most jurisdictions, including New Mexico, is governed by what are referred to as locality rules. In other words, the medical provider’s medical care must have fallen below the standard of care in the community. These locality rules are embodied by jury instructions in most jurisdictions.
New Mexico’s Jury Instruction (UJI 13-1101) states that the medical provider must exercise a duty of care consistent with a reasonably well-qualified healthcare provider “practicing under similar circumstances, giving due consideration to the locality involved.”
Locality rules apply also to specialists. A specialist has a similar duty of care defined in terms of a “reasonably well-qualified specialist practicing under similar circumstances, giving due consideration to the locality involved. A doctor who fails to do so is negligent.”
National Standards Typically Govern Medical Care
This is where it gets a little confusing for non-lawyers. Specialists are governed by professional associations and there are fairly rigorous national standards for accreditation as a specialist in any particular medical field. The standards of care for specialists are established by these national standards. It may be reasonably expected that a specialist will meet these standards. Failure to do so would suggest negligence and/or incompetence, either of which jeopardizes patient safety.
National Standards are Critical to Patient Care
The importance of national standards cannot be overstressed. These standards are derived from the best minds in medicine. They often arise out of patient safety issues, including very serious and recurring preventable medical error. They also come from governmental agencies such as Medicare.
In fact, Medicare has been very forceful in its efforts to nationalize these standards. Medicare has done this through a policy of non-payment for hospital-acquired conditions resulting from a lengthy list of inexcusable medical errors. Naturally, despite the huge direct and indirect costs to patients, the medical care system, and taxpayers, many in Congress have pushed back stating that these national standards should not be construed as standards at all for purposes of medical negligence claims.
Congressional action of this sort seriously endangers innocent patients even in the midst of past Congressional findings of an epidemic of preventable medical error. Fortunately, at least in New Mexico, the courts recognize that national standards govern most cases, which in turn helps explain the need for national experts on the standards of medical care in any medical malpractice lawsuit filed in New Mexico.
Standard of Care Must be violated for a Medical Malpractice Lawsuit
This should by no means suggest that medical malpractice cases are easy. They are very difficult and expensive to pursue. Medical malpractice claims do not get off the ground without expert medical opinion to show that the standards of care (local and national) have been violated. Without the expert opinion of a qualified expert in the particular field of medicine, these cases get dismissed at summary judgment. This means, the cases are dismissed right out of the gate by the judge.
In short, task #1 is to determine whether the medical care fell below established standards of care. To do this, the patient must typically seek the services of an attorney. Here’s why:
- Local doctors rarely testify against other local doctors.
- It is therefore necessary to get a national expert, which is expensive.
- It is important to find a highly qualified and objective medical expert, not paid hired guns that will say what they are paid to say.
- Most injured patients do not have the wherewithal to accomplish these things on their own.
In short, seek experienced legal counsel to review your claims. If the claim appears to have merit, the attorney will have an expert review the medical records. A good expert will tell the attorney whether or not the claim should be pursued.
Unfortunately for many patients, by virtue of their experience and objectivity, the expert(s) will frequently suggest that the case has no merit and should not be pursued. On the other hand, when they do say there is a claim, the case is ready to go forward including litigation.