Normally the Legal Standard of Care Is Established in a Lawsuit by

Again, the judge reiterated that the care provided by a physician is minimally competent, may differ from the care provided by other physicians, and that a poor outcome does not mean that the standard of care has not been met. If a law designed to protect the public is violated in an allegedly negligent act, a court may adopt the law as a standard of due diligence for tort. [8] This is negligence in itself. There is no doctrine of negligence per se in federal law. For example, the following situations may lead to a duty of care between road drivers, physician and patient (professional liability) or employer and employee: A duty of care is based on what a reasonable person would do in the same or similar circumstances. A reasonable person is a legal fiction. It is an objective test, not of what a person honestly thought was right, but of what he or she should have done based on what a reasonable person would have done in the same or similar circumstances. It should be noted that while the reasonableness standard does not change, the “same or similar situation” usually does. The trier of fact, that is, a jury (or judge in a court case) decides what a reasonable person would have done based on the circumstances presented to them. It is important to know who the members of a jury are.

This is the point already discussed in Chapter 5. Voir dire is also part of the selection process of the civil jury. What is considered reasonable for a jury in New York may not be reasonable for a jury in Batavia, New York, and yet both juries may be right. The T.J. case Hooper set the stage for a major medical malpractice trial that took place in 1974. In Helling v. Carey, the plaintiff (Helling) sued her ophthalmologist (Carey) for vision loss due to glaucoma. The defendant won in both the initial trial and the appeal, but when the case made its way all the way to the Washington State Supreme Court, the verdict was overturned in favor of the plaintiff. During the initial studies, experts said that since the patient was under 40 years old and the incidence of glaucoma in this group was only one in 25,000, it was not standard to test patients under 40 years of age with tonometry. However, the Supreme Court ruled that the test was inexpensive and harmless and should have been offered to the patient. Justice Hand`s decision in T.J. Hooper was cited in the decision.7 In some cases, the limitation period may be extended or extended.

Under NYS law, a minor typically has three years from the date of his eighteenth birthday to begin his trial. However, if the minor`s claim is a claim for medical malpractice, the limitation period may not be extended by more than ten years from the date of the act or omission that caused the violation. In certain situations, such as mental incapacity for work, the limitation period may be three years. Once a duty of care has been established, the focus is on the level of due diligence that one party owes to the other. Contextual factors, such as the nature of the relationship between the parties, are considered in determining the scope and nature of a standard of care. A standard of care is a guideline for medical or psychological treatment and can be general or specific. It establishes appropriate treatment based on scientific evidence and cooperation between medical and/or psychological professionals involved in the treatment of a particular condition. A particular benefit is a court order that asks a defendant to do something. Although rare, a specific benefit is appropriate when monetary damages are simply not enough. For example, if the subject matter of the dispute is a unique antique that the defendant is now selling to the plaintiff under a valid contract between the parties, the court would order delivery of that particular antique to the plaintiff in accordance with the terms of the contract by issuing a specific enforcement order. The standard of care applies to determine whether a health care provider acted negligently.

For example, a cardiologist would be expected to act with the same care as a specialist with similar training. If the cardiologist has not diagnosed heart disease when a reasonably competent specialist would, the cardiologist may be considered negligent and could be held liable for any resulting loss. Typically, the type of behavior required to meet the standard of care is determined by a factual analysis that considers: So if the physician were to do something for which he was sued for medical malpractice, he would be judged according to a standard that was an objective standard in his field.