Medical Negligence & Standard of Care

Excerpts from American Jurisprudence, 2d, Vol.61

§ 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.