“Standard of Care” in Medical Malpractice Widely Misunderstood
In medical malpractice claims, it must be shown that the medical provider’s services fell below the standard of care in the local community. The standard of care in this setting is not what many believe it to be.
Standard of Care is Technical Not Emotional
First, the standard of care has nothing to do with compassion, politeness, bed side manner or any other such thing. Many patients and families seemed to be confused on both ends of this equation. Many wrongfully believe that they might have a medical malpractice claims against rude, callous or otherwise offensive medical providers. Others might believe (and in fact make their decision on whether to look into possible medical malpractice claims) that because the medical providers were seemingly kind and caring, there is no reason to pursue a claim.
The latter is actually a very interesting phenomenon with “likeable” medical providers getting sued at a small fraction of the levels of “unlikeable” medical providers. This makes perfect sense and is perhaps warranted in claims with minor injuries and other losses. In fact, these claims would be difficult to pursue in any event because medical malpractice cases are very difficult, very risky and very expensive for the lawyers that handle them.
On the other hand, when a patient and/or family suffers very serious, catastrophic or deadly harm, it makes no sense at all. The reasons are simple.
First, the medical providers have insurance for these very situations. The insurance companies make extraordinary profits on these insurance policies, partly because people don’t want to and even feel ashamed of suing their medical providers. It is the insurance company that should bear the costs of these tragedies, not innocent patients and families. And these insurance companies more often than not get a free ride because of the biases in favor or medical providers.
Second, being likeable does not make a medical provider competent. A likeable medical provider can in fact be every bit as or even more dangerous to patient care as the displeasing medical provider. Each must be judged by the standard of care.Standard of Care is a High Burden for Patients, Not So Much for Medical Providers
So what is the standard or care? It is a very technical requirement. It must be shown that the medical provider fell below the standard. This requires medical experts in the appropriate medical fields. An injured patient or family must, typically through an attorney, obtain a highly qualified and credible medical expert (not a hired gun to say whatever a lawyer might wish to hear) to give a medically and scientifically based opinion that the medical provider screwed up.
Screwing up is often not even enough, the medical provider must have screwed up in a big way. The last big might come as a surprise, but there are countless mistakes that are considered known risks of medical care. These mistakes are not considered medical malpractice as a rule.
In short, the standard of care is a high burden for patients and a relatively low burden for medical providers. In cases of serious injuries or death, it is very important to understand this burden and to seek the guidance of an attorney that understands it also.
Collins & Collins, P.C. can be reached at (505) 242-5958.
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