Archive for January, 2010
A physician or dentist does not undertake to cure you. He only has to do his best for you according to the standard of care for his community or medical or dental specialty. If he did not, you have a legitimate complaint. If he did, you probably d
o not have a case, no matter how disastrous the results.
Many years ago, an anesthesiologist in Rhode Island had a patient die while under anesthesia. The doctor admitted that it would not have happened if he had learned up-to-date techniques used by anesthetists in Boston, which was only 40 miles away. But, he had never gone there to learn and claimed that his outmoded and dangerous techniques were the same as those used by other doctors in the same small city, and the court believed him.
That excuse would not work today. With modern education and travel facilities, more and more states have recognized that a small-town physician or dentist has plenty of opportunity to attend meetings and take courses to keep abreast of new developments in medicine or dentistry. In most states, it is no longer a defense for the doctor to claim that he met the local standard, especially if it is a low standard.
In 1929 the American Dental Association began to establish dental board certification for dentists who wished to specialize. These doctors spend two or more years in advanced training and then must pass examinations administered by a specialty board recognized by the American Dental Association. Since the training, exams, and standards of practice for Board Certified dental specialists are the same everywhere in the country, they can be judged by a national standard.
In the 1930’s, the American Specialty Boards were established to insure that a physician, who claimed to be a medical specialist, was really competent. To be Board Certified as competent in a specialty, a doctor has to spend years training in a hospital and pass rigorous exams. Here, too, since the training, exams, and standards of practice for Board Certified medical specialists are the same everywhere in the country, they can be judged by a national standard.
Sometimes Board Certified specialists will try to defeat medical malpractice cases by claiming they are only local doctors. A heart surgeon in California claimed that he practiced according to a lower standard when he operated in San Bernardino than when he operated in a university hospital in Los Angeles. Unusually, that does not work.
The Standard of Care
There are several ways you can judge whether or not a physician or dentist lived up to the standard of care, or whether he has indeed committed malpractice. In other words, whether the bad result that was devastating for you and your family was justified, or whether the doctor was really to blame.
The Average or Reasonably-Competent Practitioner Rule
A physician or dentist does not have to be the best in the country or even in the top 50%. If all the doctors in the U.S. were rated on a scale from 1 to 10 and the average was 5, half would be above 5 and half below. Does that mean that all the doctors who fall below the 5 average should be considered incompetent? No. As the U.S. Supreme Court once put it, if 51% of the doctors in the U.S. do things in a certain way, it does not mean that the other 49% are automatically guilty of malpractice. The average is what is considered as generally accepted by the profession. All a doctor has to show is that he acted with reasonable skill or as most of his colleagues would have acted.