The Criteria for Reasonable Doctoring
Posted on behalf of Goldberg Finnegan, LLC on Mar 06, 2012 in Medical Malpractice
Maryland medical malpractice law requires that doctors, hospitals and other health care providers comply with the standard of care. The standard of care is defined, in essence, as that degree of care which a reasonably prudent health care provider would use in a same or similar circumstance. For example, if a patient needed a chest x-ray read, and a radiologist interpreted it improperly, that radiologist would be judged according to the standard of care of radiologists in a same or similar setting. A jury evaluating that case would have to decide whether the radiologist did what a reasonable radiologist would have done under the same or similar circumstances.
Similarly, if a patient had a chest x-ray done and an emergency room physician read it wrong, that emergency room physician would likewise be judged according to the standard of care, but the standard of care would be different than if it was being read by a radiologist. It would be whether the emergency room physician did what a reasonably prudent emergency room physician would have done. The emergency room physician is not going to be judged at the standard owed by a radiologist, which may be unfair.
One question that Maryland courts have struggled with for years is whether the standard of care is a national standard, a state standard, or even a county standard. To put it in context, the question is whether a doctor at Western Maryland Hospital is held to the same standard as a similar physician practicing at Johns Hopkins, or at the Mayo Clinic.
The October 11, 2011 Maryland federal court opinion of Willison v. Pandey was another win for the good guys. The case was about the management of clinical T1 renal masses, which can lead to kidney cancer. Judge Ellen Hollander had to decide whether an expert hired by the plaintiff was allowed to testify.
The Maryland rule about the standard of care is found at Courts & Judicial Proceedings Article Â§ 3-2A-02(c)(1):
In any action for damages filed under this subtitle, the health care provider is not liable for the payment of damages unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.
The Plaintiff's expert, a New York urologist, truthfully testified (in response to the defense lawyer's questions) that he didn't have a Maryland medical license, didn't research anything about the medical community in Cumberland, Maryland (where the alleged negligence occurred), and didn't talk to any Maryland colleagues about their experiences.
The Plaintiff's lawyer then had a chance to ask questions. The expert testified that there is a national standard of care for urology, and that the standards are the same for urologists in New York and Cumberland. "I can't imagine that because a patient is in a smaller hospital in a more rural area that he should be not entitled or should not receive the level of care that a patient anywhere else in that state or in this country should get."
One rationale for a different standard of care is where a rural medical facility has limited access to high-tech equipment that can only be afforded by major hospitals. In such a case, the doctors are expected to act in accordance with the standard owed by doctors without access to that equipment. Predictably, this would only apply in emergency situations. Otherwise, the patient can be referred elsewhere. This is also not the case for most hospitals in our area.
Judge Hollander decided that Maryland does not apply a "strict locality" standard for expert witnesses. Maryland does not require that standard of care experts be from the same community as the defendant; instead, it requires that experts be familiar with the standard of care required by the defendant. In this case, the expert presented good evidence that the standard in Cumberland, Maryland is the same as the standard anywhere else in the United States.
The reality of medical practice is that local standards of care are disappearing. Doctors often go to medical schools that meet national accreditation standards, which prepare them for practice anywhere in the United States. Doctors attend continuing legal education seminars put on by national companies that deal with standards common to all states. Doctors are board-certified in specialties that have uniform national standards.
Questions that Maryland Medical Malpractice lawyers should ask the defendant doctor and his/her experts:
- Where did you go to medical school? (If it was in a different state, how did they learn the standard of care in this state?) Is that school nationally accredited?
- Are you board-certified? Are there uniform requirements for certification for practitioners in all states?
- Do you believe that doctors should act differently depending on where they practice?
- Where were your most recent continuing medical education courses? (If the courses were put on by a national company and especially if they were in a different state, it shows that the standard of care is identical).
- What medical journals and books (related to the type of care given) do you read?
- Describe your practice and how it is similar to the defendant's practice.
- Describe your familiarity with the medical procedures at issue, and how the training, and experience in it is the same nationally.
Many of our Maryland medical malpractice cases come to us from lawyers across the United States. Our medical malpractice attorneys gladly work with other lawyers who have Maryland, Virginia or District of Columbia cases who need local or co-counsel. At Goldberg Finnegan, our injury attorneys charge no upfront fees when we take on our case and your initial case review is also free of charge.
Goldberg Finnegan - Ph: (888) 213-8140.