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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.

Lawyers call this the Lay Standard, because it is based on what a layman (the patient) understands and not what a professional thinks she needs to understand.  The Reasonable Patient Standard simply says the doctor has to disclose all information which would influence you, or any other reasonable person, in deciding whether or not to go ahead.  This is a lot easier for you, because you do not need a doctor to testify to what is reasonable.  If you would have acted differently, had you known all the facts, then it is not an informed consent.  Put another way, the doctor has to disclose all material risks.  A material risk is one that the average person would take into consideration in making a decision.  And, like the reasonable physician standard, the doctor must also tell you of alternative courses of treatment and what can happen if you refuse treatment.  The reasonable patient standard is better for you, because you do not have to bring in an expert, and the doctor cannot defend himself by saying he told you what one of his colleagues would have told you.

How much a doctor has to tell you varies from state to state.  Some states have the Therapeutic Privilege; some do not.  Some give doctors a free hand in treating life-threatening emergencies.  Only your lawyer can tell you for sure whether the information your doctor gave you satisfied the law in your state.

The first time the reasonable patient standard was used by a court was in Washington, D.C., and it is a famous case.  A neurosurgeon did a laminectomy (a spinal operation) on a 19 year-old girl, who complained of some back pain.  He did not warn her about the possible complications, especially the 1% chance that the operation could leave her paralyzed for life, which it did.  The doctor said he had complied with the law by telling her as much as he thought she needed to know, which was not much.  But, the court said he failed to give her enough information to allow her to make an informed decision.  She would not have risked even a 1% chance of paralysis just to get rid of a backache that could have been treated safely by conservative means.  Since that time, more and more states have adopted the reasonable patient (lay) standard.

An Oklahoma woman was advised to have a routine Pap smear for cancer of the uterus; however, she did not follow-up, and the doctor said nothing more about it.  She did not have the test.  She later developed incurable cancer and sued the doctor for failure to warn her.  At that time, Oklahoma used the reasonable patient (lay) standard, and the court found the doctor was negligent, because he had failed to advise her of all the material risks of her refusal.  The ease and simplicity of the test, and the serious risk of death from cancer, made a warning and follow-up mandatory.

Unusual or Experimental Treatments

All unusual or experimental treatments come under the reasonable patient standard in almost every state.  The doctor must tell you everything that is known about it, including the most remote possibilities of any bad reaction, before subjecting you to anything that is not approved by the federal government or generally accepted by the medical profession.  This is true also of treatments like sterilization or x-ray therapy, which can have permanent effects on your life or cause serious complications years later.

In the 1950’s a sleeping pill called Thalidomide was developed in Germany.  It was never approved by the U.S. Food and Drug Administration, but some doctors brought it into the country and gave it to their patients.  It was later discovered that if taken by pregnant women, it caused children to be born without arms and legs.  Many lawsuits resulted with significant damages awarded.  In all of the cases, the doctors, who had given the drug, were held to the reasonable patient (lay) standard in failing to warn that it was an experimental drug.

Who is Responsible for Informing You?

If you file a medical malpractice lawsuit and complain that you did not sign an informed consent, you may find yourself getting a “fast shuffle” with the doctors, the residents, and the hospital, each blaming someone else.  The rule is that each doctor is personally responsible for informing you about what he is going to do and obtaining your informed consent.  He does not have to do it himself, but if he sends a resident or a nurse or anyone else, he is still responsible for what that person tells you.

If the doctor obtains your consent himself, he should sign it himself.  If someone else does it for him, he accepts responsibility when he countersigns it.  If he does not, both he and the person who obtained it are responsible.  If that person is a hospital employee, the hospital is also responsible.

The Rule Is:
The doctor who actually works on you is ultimately responsible for telling you what he is going to do and obtaining your informed consent, regardless of who actually gets it.

Which Standard Applies in Your State?

The laws in all states are complicated, and there are many exceptions to the general rules.  Only your lawyer can give you a reliable opinion as to which standard applies in your case.

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