Posts Tagged ‘respectable minority’
The Best Judgment Rule
Another thing you may run into is the best judgment rule. This says that your doctor did not guarantee a good result. He only promised to do his best for you and cannot be faulted, if your condition did no
t respond as you had hoped or for making an honest mistake. The practice of medicine or dentistry is an art, not a science. Some diseases are so obscure it is impossible to make an accurate diagnosis. Sometimes what looks like ideal treatment produces disastrous results. But, with the sophisticated diagnostic equipment available today, doctors should not make serious mistakes in diagnosis.
For example, your doctor says, “When we got into your abdomen, you did not have a perforated stomach ulcer. It turned out to be pancreatitis, and you did not need surgery.” Can he do that and get away with it? Yes. But, not that easily. To plead an honest mistake, he has to satisfy four conditions:
1. He has to have performed a careful diagnostic work-up. The rule is that errors in diagnosis and treatment are malpractice, if based on a careless or inadequate diagnostic work-up. The doctor who performed surgery failed to do a white blood cell count or some other important diagnostic test before surgery. This
is malpractice. This is where a lot of doctors get caught. The doctor is in a hurry to get away from the office, or operating room, or to see too many patients and skips over an important test.
2. The doctor must interpret the test data correctly. You are going to have exploratory abdominal surgery but might be pregnant. The surgeon orders a pregnancy test but goes ahead without learning the result of the test. You later learn the pregnancy test was positive, and he operated on a pregnant uterus and you lost the baby. Is he liable? Yes. The doctor has to have made a diligent attempt to put the big picture together from all the test data before making his decision.
3. There must be a legitimate choice between different and competing techniques. The doctor has to be able to produce a textbook or authoritative medical article that says you can do it either way, and he chose one that turned out to be wrong.
4. The choice has to be one that a respectable minority of doctors would have made.
If the doctor says he used his best judgment, he has to have met these four conditions to justify a bad result and not be guilty of malpractice. He is admitting that he made a mistake and is offering the excuse that he committed a justifiable error of judgment. In order to do so, he has the burden of showing that his error was truly justifiable and not due to negligent behavior on his part.