How Does the Medical Malpractice Standard of Care Change Over Time?

The standard of care is developed through complex interactions between doctors, medical researchers, and a variety of entities working in healthcare. Standards emerge when an overwhelming majority of these groups agree that a practice is “reasonable” or “ordinary” or that some practices are “unacceptable”.

These standards are constantly updated as new medical studies and technologies bring different facts to light. In the 1950s, it was standard practice for doctors to recommend total rest to patients who recently underwent heart surgery. However, medical studies revealed that getting active was the best way to help the heart heal. These days, the standard of care is for doctors to recommend getting active as soon as possible after heart surgery.

The First Standards of Care

The concept of the “standard of care” dates back to the first set of laws ever written: the Code of Hammurabi. The original laws focused on the expected outcome of procedures; if a doctor said he could perform a surgery that would cure a condition, the doctor was expected to follow through. Good service was met with monetary awards. Breaching the standards was met with severe punishments. All breaches in medical standards were met with harsh punishment, even those that did not result in harm for the patient.

The first documented case of medical malpractice in the United States was Cross v. Guthery, a case of a negligent mastectomy. The court ruled in favor of the victim, writing that the doctor was required to perform the surgery with “skill and safety” but instead performed it “in the most unskillful, ignorant and cruel manner, contrary to all the well known rules and principles of practice in such cases”. Cross v. Guthery, 2 Root 90, 1794 WL 198 (Conn. Super. Ct. 1794).

Subsequent cases have defined the standard of care with this basic rule summarized in the Yale Journal of Health Policy, Law, and Ethics:

“A reasonable or ordinary degree of skill and learning commonly possessed and exercised by members of the profession who are of the same school or system as the defendant and who practice in...similar localities and exercise of the defendant's good judgment.”

Developing New Standards

New standards of care are developed as technology advances, medical studies reveal new information, and as critical medical errors force society to reevaluate old standards.

Standards of care do not develop overnight. If a study is published on a Monday with overwhelming proof that a new standard should be set, it is understood that most doctors will not be able to implement the standard by Tuesday.

The standard of care is the degree of risk assessment a doctor uses in providing care to patients. There is no exact formula to determine the standard of care; a doctor's duty to adhere to the standard is assessed by answering a simple question: what would a similarly qualified and reasonable medical professional do under the same circumstances. Though this definition of the standard of care is simplistic, it helps answer the basic question of what level of care a doctor is required to provide.

Technology Advances Medical Standards

Advances in technology bring new, better ways of practicing medicine. When new technology becomes widely available to all doctors, it replaces outdated methods of practicing medicine and becomes the new standard of care. Examples of new technologies include:

3D printed biological materials- Doctors have successfully printed new blood vessels, heart tissue, skin, organs, and embryonic stem cells in printers. One day it may be standard practice for doctors to use 3D printers instead of grafts or transplants.

Hybrid operating rooms- New technologies are making operating rooms more adaptable to the patient. Technologies will help doctors monitor patients better during surgery, get clearer images of the patient's body, and will allow doctors to perform less invasive procedures that let patients heal quicker and cause less scarring.

Genome sequencing- Developing technologies are allowing doctors to map a person's entire genome and detect medical conditions or major medical risks.

Medical Studies Reveal New Information

Often the standard of care is updated when new medical research reveals better ways of practicing medicine. Just in 2015 alone medical researchers published these important findings that may alter current standards:

Researchers at the Washington University School of Medicine created a new medication that mimics a gene found in people with low levels of L.D.L. cholesterol (the bad cholesterol).

A clinical trial at the Hôpital Saint-Louis in Paris found that taking an antiviral medication prior to and after unsafe sex may help prevent the spread of H.I.V.

The New England Journal of Medicine found that when bystanders intervened with C.P.R. before any E.M.T.s arrived, the patient had a 6.5% better chance of survival. It may become standard practice to use smartphone updates to notify people that someone nearby needs C.P.R. while waiting for emergency healthcare professionals.

With time, the new information from medical studies spreads and becomes part of the standard of care. In a few years, doctors may be required to offer antiviral medication to all H.I.V. patients, or the new cholesterol medication may become the standard for all high cholesterol patients.

Medical Errors Point to New Standards

Mistakes made by doctors that result in tragic consequences for patients force the healthcare community to question if standards could be raised.

In 1976 Dr. Jim Styner, an orthopedic surgeon lost control of his plane and crashed into a cornfield. His wife and three of their children died from the resulting injuries. Dr. Styner alleged that his family received substandard care in the medical facility. He helped found the Advanced Trauma Life Support (ATLS), a training program for the first hour after a trauma. Today it is the national standard.

In the early 1980s, anesthesia mistakes that resulted in death or injury were surprisingly high. After exposés about the problems caused outrage, the American Society of Anesthesiologists created that Anesthesia Patient Safety Foundation and found new ways to monitor patients' carbon dioxide levels during surgery.

Similar stories can be told about the development of modern techniques for fetal heart monitoring, sponge counts during surgery, mammograms, and wrong site surgeries.

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