How Is the Standard of Care Determined?

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 overly simplistic, it helps answer the basic question of what level of care a doctor is required to provide.

Who Develops the Standard of Care?

There is not one singular standard of care, some standards of care are “floating” standards. Just like the speed limit can change for day and night driving, the standard of care can change to adapt to different situations. The standard of care for an optometrist is different than the standard of care for a surgeon, and the standard of care is different for a rural doctor with little access to technology than it is for a doctor that has a full array of advanced medical technologies they can use.

The standard of care is developed by a complex network of doctors, medical researchers, government regulators, and writers for medical journals. Standards are not like laws, they are voted on once a year by elected doctors. Instead, standards organically grow from research studies, current doctor practices, and technological developments.

Standard of Care and Medical Malpractice

In a medical malpractice case, the standard of care will be articulated by medical experts who will testify on current professional standards in the specific area of medicine. Attorneys will also present current clinical practice guidelines to demonstrate the current standard of care and where a doctor fell short. Clinical practice guidelines are usually created by multidisciplinary teams of experts in medical fields and only count as “standards” when an overwhelming majority of doctors agree to them. For example, most all doctors agree that women with a high risk of breast cancer (such as a family history of breast cancer) should receive more frequent mammograms. If a doctor fails to inquire about a patient's family history, the doctor could be held liable for missed diagnosis.

Jurisdictions of Standards of Care

Locality

The locality rule of the standard of care imposes a geographical factor on the standard of care. The rule is based on the notion that a national standard of care is sometimes too difficult to determine and that the standard only needs to be applicable to a certain geographical area. The rule is often attributed to the 1880 malpractice case Small v. Howard where the judge ruled that a doctor's negligence in caring for a wound was not malpractice because the doctor practiced in a rural area and should not be judged against metropolitan doctors with better education and resources.

The locality rule is still in effect today in many places. Idaho, Tennessee, Arizona, New York, Virginia, and Washington all have legislation that imposes a strict or moderate adherence to the locality rule for malpractice cases. Idaho has the most restrictive rule that says defendants in malpractice cases must prove that the healthcare professional “ negligently failed to meet the applicable standard of health care practice of the community in which such care allegedly was or should have been provided, as such standard existed at the time and place of the alleged negligence” (§6-1012 Idaho Statutes).

National

A national standard of care was noted in 1985 in Hall v. Hilbun. The court recognized that the “nationalization” of medical education and training has created uniform standards for doctors across the country. The court also noted that modern doctors go to school and practice in different states, and even relocate to other states. However, the doctors are supposed to carry with them the same notion of the standard of care. Medical journals and seminars across the country keep national standards available to doctors in every state.

A previous case, King v. Murphy, had already “greatly expanded the concept of the ‘neighborhood or locality'…to include geographically at least the entire state of Mississippi plus a ‘reasonable distance' adjacent to state boundaries.”

Since Hall v. Hilbun, the push for a national standard of care has grown with courts instead focusing on other nuances like the advances in the medical profession, the availability of new technologies, and the type of doctor involved in the case.

Most states have also specifically applied the national standard to specialist doctors, arguing that those doctors are not judged against other doctors in the same geographic region, but against doctors nationwide.

Respectable Minority

The respectable minority rule of the standard of care does not hold doctors to any kind of majority consensus of standards either nationally or locally. The rule holds that if a respectable minority of doctors agree with a procedure that is not mainstream, then negligence is not a factor. In other words, if a doctor performs a procedure that does not fall within the standard of care but is used by a respectable percentage of doctors in good standing, then the procedure can be verified as good care. If 51% of doctors agree on a procedure, the 49% of doctors who do not are not automically committing malpractice; being in the minority does not mean doctors are automically wrong.

Two early cases for this were Chumbler v. McClure (1974) and Hamilton v. Hardy (1976). In Chumbler v. McClure, a patient suffered complications as the result of a procedure completed by a neurosurgeon. The neurosurgeon was the only doctor in the geographical area that used a specific medication. The patient was not able to show that the doctor deviated from a standard of care, and the court ruled that being the only doctor to use that treatment did not make the treatment wrong.

In Hamilton v. Hardy, a doctor continued to prescribe a birth control pill even though the patient complained of headaches. Though the majority of doctors would have discontinued the treatment, the doctor was able to prove that a respectable minority of doctors would continue the treatment, and the court ruled in the doctor's favor.

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