Hello, tenacious1-ga!
The best way I can think of to answer your question is from a legal
viewpoint. You have mentioned that you do not want to concentrate on
any specific medical conditions or the associated arguments
surrounding different viewpoints pertaining to "standards of care" in
a particular situation. Therefore, it would be extremely difficult to
find a compilation of differences in the way various localities deal
with the "standard of care." You would have to break down some
specific medical conditions, and look at the arguments currently
surrounding the accepted standards within each state
*However, despite the fact that standards often differ between states,
there are legal writings that seek to establish what an overall
standard of care "should" be, no matter what the locale.*
If you want to know "how to determine the definition of the "standard
of care" in medicine" and find "a general approach to applying a
definition to a variety of circumstances," I don't believe you can do
any better than applying the following standards outlined in American
Jurisprudence. I have put an * next to particular sections which are
especially pertinent to your question.
The following is taken from Medical Negligence & Standard of Care
Excerpts from American Jurisprudence, 2d, Vol.61 at
http://www.lasikcourt.com/resources/negligence_overview.html
*****************************************************************
§ 205 Average Standard of Profession as Test
It is the universal rule that a physician or surgeon has the duty to
use reasonable care and skill in diagnosis and treatment, and they are
liable to their patients for a failure to exercise requisite skill and
care. The standard by which the requirement of reasonable skill and
care is determined is the average standard of the profession. By that
it is meant that a physician must possess that reasonable degree of
learning, skill, and experience which ordinarily is possessed by
others of the profession, and that a physician must exercise
reasonable and ordinary care and diligence in the exertion of this
skill and the application of this knowledge, and exert one’s best
judgment as to the treatment of the case entrusted to the physician.
Medical malpractice is thus defined as a particular form of negligence
that consists of not applying to the exercise of the practice of
medicine that degree of care and skill which is ordinarily employed by
the profession generally, under similar conditions and in like
surrounding circumstances. In evaluating the conduct of a physician or
surgeon charged with malpractice, the test is whether the physician,
in the performance of his service, either did some particular thing or
things that physicians and surgeons, in that medical community, or
ordinary skill, care, and diligence, would not have done under the
same or similar circumstances, or failed or omitted to do some
particular thing or things which physicians or surgeons of ordinary
skill, care, and diligence would have done under the same or similar
circumstances.
§ 211 Conformity to Custom or Usage
Proper standards of practice in any profession cannot be fixed by
conformity to practice or usage in regard thereto; long-continued
careless performance of duty by members of a profession will not
transform negligence into due care in the practice of that profession.
***In performing surgical operations a surgeon cannot relieve himself
from liability for injury to a patient upon the ground that he
followed custom or usage prevailing in the community. Conformity to
practice or usage may be proper for the consideration of the jury in
determining whether or not sufficient care has been exercised, but the
authorities do not go so far as to justify a negligent act or
exonerate one from a charge of negligence on the ground that his
conduct in question was in accord with customary practice.***
This conforms to the general rule of negligence that while evidence of
ordinary practice or the uniform custom of persons of similar
circumstances is to be weighed and considered with other circumstances
in determining whether ordinary care has been exercised, conformity to
custom is not in itself the exercise of care as a matter of law.
§ 219 Modern View; National Standard
*** As the dissemination of medical information has become quicker,
and methods of treatment have become more uniform, the trend in an
ever-growing number of jurisdictions has been to replace the locality
or community standard by a more broadly based standard. According to
this view the applicable standard of care does not rest on any type of
geographic locality rule at all.***
The standard of care in the physician’s or surgeon’s locality, or the
standard in the general neighborhood of his locality or in a similar
locality is ***simply a factor*** in determining whether the medical
practitioner failed to exercise that degree of care and skill which is
expected of the average practitioner in the class to which he belongs,
when acting in the same or similar circumstances. This standard of
care is that established in an area coextensive with the medical and
professional means available in those centers that are readily
accessible for appropriate treatment of the patient.
§ 226 Specialists
It is the generally accepted rule that a physician or surgeon who
holds himself out to be a specialist is bound to bring to the
discharge of his professional duties as a specialist that degree of
skill, care, and learning ordinarily possessed by specialists of a
similar class, having regard to the existing state of knowledge in
medicine and surgery, that is, a higher degree of skill, care, and
learning than that of the average practitioner. Thus, it has been held
that one who holds himself out as a specialist in the treatment of a
certain organ, injury, or disease is bound to bring to the aid of one
employing him in that capacity the degree of skill and knowledge
ordinarily possessed by those who devote special study and attention
to that particular organ, injury, or disease, its diagnosis, and its
treatment, in the same general locality, having regard to the state of
scientific knowledge at the time. The question whether a physician or
surgeon is a specialist, while one of fact, is primarily for his own
determination, and if he holds himself out as such, he must bring to
his patients that degree of skill which a specialist assumes to
possess.
§229 Duty to Inform Patient Fully of His Condition
As a result of the fiducial nature of the relationship between a
physician and patient, a physician has the duty to reveal to the
patient that which in his best interest it is important that he should
know regarding the true condition of his state of health. The duty of
a physician to fully inform his patient of his condition makes it his
obligation to make known to his patient or someone properly acting for
him what are the known risks or dangers inherent in the disease that
is present or in the treatment that has been proposed, so that the
patient will then be in a position to make an intelligent decision as
to whether he will submit to the course the physician proposes to
take.
§ 236 Duty Not to Abandon Case
A physician cannot discharge himself from a case and relieve himself
of responsibility for it by simply abandoning it or staying away
without notice to the patient. Thus, a surgeon who abandons his
patient in a critical stage of disease to a relatively inexperienced
substitute surgeon, without reasonable notice to enable the patient to
secure another medical attendant, when the giving of such notice is
reasonably possible, is guilty of negligence and is liable to the
patient for any damages proximately caused thereby.
A further discussion with a bit of a different twist, allowing for a
standard of practice that is not always followed by the majority,
follows:
"Establishing Medical Standards Of Care & Breach Without Experts."
Excerpted & prepared by the 'Lectric Law Library at
http://www.lectlaw.com/files/exp24.htm
*******************************************************************************
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.
A lengthy paper titled "Using Statistical Evidence to Prove the
Malpractice Standard of Care: Bridging Legal, Clinical and Statistical
Thinking," by Michelle M. Mello. Wake Forest Law Review, Volume 37,
(10/9/2002) is available at
http://www.law.wfu.edu/lawreview/v37n3/w08-mello(2).pdf
*****************************************************************
The paper concerns the complexities involved in medical malpractice
lawsuits due to the lack of a comprehensive legal standard of care. As
quoted from the preface:
"Increasingly, there have been calls to supplement expert opinion
testimony in medical malpractice cases with more objective empirical
evidence of various kinds to establish the legal standard of
care......While empiricizing the standard of care is an intriguing and
worthy goal, implementing these proposals poses some substantial
challenges. A number of complexities arise from the differences in the
way that legal triers of fact, physicians, and researchers reason
through problems....."
The "Proposed Jury Instructions for Medical Malpractice Actions" for
the state of West Virginia, at
http://www.state.wv.us/wvsca/jury/medprof.htm
contains some further definitions surrounding the issue of "standard
of care."
*******************************************************************************
Some excerpts from the text follow:
DEFINITION OF MEDICAL PROFESSIONAL NEGLIGENCE
The determination of whether a medical professional was negligent is
made by measuring the person's conduct against an objective standard
of reasonable care under the circumstances.
NATIONAL STANDARD OF CARE FOR MEDICAL PROFESSIONALS
The standard of care for medical professionals is a national standard
of care.
EXPERT TESTIMONY IS REQUIRED TO ESTABLISH THE STANDARD OF CARE FOR A
MEDICAL PROFESSIONAL
The standard of care for a medical professional is set by other
medical professionals. Accordingly, both the standard of care itself,
and the claimed failure to meet it, must be established by expert
testimony.
DIFFERENCES IN ABILITIES
The standard to which a medical professional is held is that of the
reasonably prudent medical professional who is qualified to provide
the medical services in question.
STANDARD OF CARE FOR SPECIALISTS
A specialist must have and use the skill and knowledge expected of any
licensed physician. A specialist must also have and use the skill and
knowledge expected of a specialist in his or her field.
TWO SCHOOLS OF THOUGHT
When there are two schools of thought as to how to treat a particular
medical condition, and both of these schools of thought are within the
standard of care, a physician is not negligent in selecting one over
the other. In order to establish the existence of two schools of
thought within the standard of care, the physician must prove that the
challenged school of thought enjoys such substantial support within
the medical community that it is widely and generally recognized. The
necessity of presenting evidence sufficient to support a two schools
of thought jury instruction rests with the defendant.
STATE OF MEDICAL KNOWLEDGE AT THE TIME
The standard of care for a medical professional is the standard which
existed at the time of the claimed negligence, and in deciding if the
standard was met, you must consider the state of medical knowledge at
the time.
NO GUARANTY OF RESULTS
A doctor is not a guarantor of favorable results from treatment,
unless there is a special contract between the doctor and the patient
guaranteeing results.
I have run across numerous references to questions surrounding the
medical "standard of care" as it pertains to particular medical
conditions.
For example, the article "The 'Standard of Care' and the Treatment of
Stroke," by Tom Syzek, MD. American College of Emergency Physicians at
http://www.acep.org/1,2487,0.html, discusses the risks and advantages
associated with using new emergency medications for stroke patients.
*******************************************************************************
An excerpt of the dilemma facing physicians follows:
"Because of these issues, many emergency physicians wonder just what
is the "standard of care" when it comes to stroke treatment? Is the
standard the same at academic stroke centers and smaller hospitals
with no neurologist or neurosurgeon? Differences of opinion exist
regarding these two questions."
"For now, the "best defense" will be to devise and follow a plan for
the care and treatment of stroke patients in your emergency department
that proactively addresses the risk issues. Be prepared to defend your
choices of therapy based on your education, training, experience, and
evidence-based medical literature."
"Will there ever be one "standard of care" for stroke treatment from
a medical-legal point of view? At the present time, the jury is still
out."
Though the above is an excellent article describing the questions
surrounding the standard of care, it only addresses one type of case,
and I understand this is not what you are asking.
Therefore, I sincerely hope that I have addressed your question in
the best possible manner.I do believe the legal writings give an
excellent overview of the "standard of care" that should be applicable
to most all medical circumstances.
However, if I have totally missed the point, and you desire
additional clarification, please don't hesitate to ask!
umiat-ga
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legal definition "standard of care"
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Clarification of Answer by
umiat-ga
on
31 Jan 2003 15:56 PST
Hi, tenacious1,
The following excerpts should give you a better idea of how the
medical "standard of care" is decided. It is not merely a "fly by
night" decision determined by one doctor in a specific locale. Over
time, a consesus of opinion evolves concerning specific medical issues
and how they should be handled. Court cases try these standards
whenever a malpractice suit arises, and standards are questioned and
further defined. Undoubtedly, with the changing nature of the medical
profession, and the particularities of each situation, we have not yet
come to a concrete, nationwide, accepted standard of care which
applies in every situation. However, doctors groups and associations
are constantly haggling over the fine points to try to establish some
standards which can be held as a benchmark.
From "Professional Policies." American College of Medical Quality
http://www.acmq.org/index.htm
Policy 3: Standard of Care
*******************************
http://www.acmq.org/profess/policy3.htm
The Standard of Care is defined as a case and time specific analytical
process in all medical decision-making which produces a clinical
benchmark of acceptable medical care.
** This standard must reflect the art (consensus of opinion of
clinical judgment) and science (published peer review literature) of
medicine. This benchmark used to evaluate and guide the practice of
medicine encompasses the learning, skill and clinical judgment
ordinarily possessed and used by providers of good standing in similar
circumstances.**
This standard must be uniform and timely for all health care
personnel whether or not they are actually providing direct clinical
care or reviewing the medical necessity of past, present or future
medical care. A violation of standard of care may result in
under-utilization of medical care, but also occurs when unnecessary
care (over-utilization) is provided. The standard of care is based on
a national and clinical basis, rather than a local provider community
or payor review basis.
Policy 4: The Medical Decision-Making Process
************************************************
http://www.acmq.org/profess/policy4.htm
The medical decision-making process used in medical quality management
reflects a consensus of opinion of clinical judgment which is
supported by published peer review scientific literature.
This decision-making process must be conducted in a uniform, timely
and consistent manner utilizing risk-benefit analysis.
The medical decision-making process not only applies to all direct
patient care but to the medical review of care a patient receives.
** This decision-making process must be documented in writing,
reflecting how it is consistent with the applicable standard of care,
and must be performed by qualified and credentialed health care
professionals.**
Policy 5: Development and Usage of Practice Parameters for Medical
Quality Decision-Making
*****************************************************************************************
http://www.acmq.org/profess/policy5.htm
Practice parameters are strategies for patient management, developed
to assist health care professionals in clinical decision-making.
Practice parameters include standards, guidelines and other patient
management strategies. Standards are accepted principles for patient
management. Guidelines are recommendations for patient management
which identify a particular management strategy or a range of
management strategies. Other strategies for patient management
include practice policies and practice options.
**Practice parameters are to be used as screening tools to identify
possible deviations from the applicable standards of care. Such
parameters are not to be used as absolute standards or to profile or
report card on health care personnel. Parameters are designed to
trigger a process in which possible deviations from the standard of
care are identified and are focused on outlier practice patterns.**
Parameters used in the day-to-day practice of clinical medicine should
be clinically relevant.
**They are not to be considered as substitutes for the standard of
care, but may contribute to its formulation.**
** Once a deviation from the parameter is identified, such deviation
should be referred to the appropriate, qualified physician
advisor/reviewer for a determination of medical necessity which
conforms to the applicable standard of care.**
Practice parameters must be developed, designed and implemented only
by practicing board certified physicians where applicable. These
physicians should have unrestricted medical licenses. Qualified
non-physicians may participate in the development of these parameters
only in the areas where their clinical expertise based on the standard
of care is applicable.
***These physicians and non-physicians must be specialized in the
particular field for which they are being ask to develop the
parameters.***
The health care personnel who develop these parameters should sign
their names and date the final version as evidence of their
participation and support.
***Practice parameters must be based on sound scientific research
findings, professional literature, clinical experience and
appropriate, well-recognized methodologies, and reflect
professionally recognized national standards of care practiced in the
clinical community of medicine. The procedures followed in their
development, the participants involved, the evidence used, the
assumptions and rationales accepted, and the analytic methods employed
should be meticulously documented, described and made publicly
available for national peer review. Parameters should be updated as
needed.***
Practice parameters are used as tools to enhance medical
decision-making, but not as replacements for physicians' clinical
judgment. They can be considered as means to enhance the performance
of clinical and review personnel but not to replace them. It is below
the standard of care of the medical review process to substitute
qualified physician reviewer experts with unqualified reviewers using
parameters.
*******************************************************************************
For an example of how accepted standards of care evolve regarding
specific medical situations, you might want to read the following
article:
"The Evolving Standard of Care In The Workplace and Public Access
Setting:Emergency Response and Combination AED/O2 Units," by Russel
Brewer, Attorney at Law (3/29/2001) at
http://www.initialresponse.com/AED%20Articles/Evolving%20Standard%20of%20Care.htm
With the introduction of the automated external defibrillator (AED),
the "success of these units is changing the legal format by which
liability is addressed in the workplace and public access setting."
Whereas before,it was unthinkable that a fitness club may have to
adhere to anything more than the accepted medical standard of applying
CPR, it is now evident that the introduction of the AED is putting
greater expectations on fitness personel.
Although the above article does not involve a doctor, it is a good
example of how accepted medical "standards of care" develop.
Obviously, with each lawsuit, precedents are set and the medical
standards evolve.
The following paragraph from a recent symposium highlights the
changing nature of medical standards of care:
"Advancing the Standard of Care: Putting Science into Practice." The
Texas Heart Institute
http://www.texasheartinstitute.org/ahaf02.html
"The standard of care for the treatment of patients with
cardiovascular disease continues to move forward. New information
becomes available almost daily, and we are continually challenged to
incorporate recent clinical advances into our everyday practice."
** It is also necessary to understand the importance of peer review in
devising accepted Standards of Care. **
Read "Peer Review" by LAWRENCE M. SHUER, Chief of staff (Stanford) at
http://www-med.stanford.edu/shs/update/archives/mar98/shuer.html for a
very good overview of the peer review process.
I hope this extra information has helped to clarify some of your
questions. If you need further clarification before rating this
answer, don't hesitate to ask!
umiat
Google Search strategy
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