In general, the standard of care for determining medical malpractice is based on how a similarly qualified practitioner would have performed under the same or similar circumstances.   

How is the Standard of Care Determined?

The requisite standard of care is usually determined by evaluating the performance and abilities of doctor's practicing near the doctor accused of malpractice.  Exactly how near can be different in each state.  For example, a rural doctor's resources will often be less extensive than those of a metropolitan hospital, and this may be taken into account when determining the appropriate standard.  Examples of common standards include:

  • The National Standard of Care: requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances
  • The Locality Rule: requires a doctor to have the reasonable caliber of skill and knowledge that is generally possessed by surgeons and physicians in the locality where he or she practices
  • The Respectable Minority Rule: where the doctor did not follow the same course of therapy that other doctors would have followed, he can show that his course is accepted by a respectable minority of practitioners

How is the Standard of Care Proved?

Usually expert witness testimony is necessary in cases of medical malpractice to demonstrate the standard of care. 

What if I Cannot Prove Negligence?

In the event that actual negligence can't be proved, even though it is clear that it existed, an injured patient may still be able to prevail on his or her claim.  For example, a patient may not be able to directly prove negligence because he was unconscious during a surgery.  In such cases, the patient must prove:

  • That he or she suffered an injury that is not an expected complication of medical care
  • That the injury does not normally occur unless someone has been negligent
  • That the doctor was responsible for the patient's well-being at the time of the injury

Do I Need a Lawyer for my Medical Malpractice Claim?

The standard of care for medical malpractice differs in each state, and can be difficult to interpret and prove.  An experienced medical injury lawyer can help you determine the appropriate standard of care.  A medical malpractice lawyer can also represent you in court.