by Gary Brooks Mims
A medical malpractice case is a complex and lengthy process. It ends either with a settlement or a jury trial and the jury’s verdict. If the plaintiff wins, the jury foreman will read, “We, the jury, on the issues joined, find in favor of the plaintiff and assess damages in the amount of…”
What that jury had to decide is whether the “standard of care” was violated, if the plaintiff was injured as a result of that violation, and how to compensate for any damages that resulted from the injury.
Does it sound simple?
It’s not. While evidence may easily establish that the plaintiff was injured and additional evidence may establish what compensation should awarded, the “standard of care” is often difficult for the jury.
Why? There is not one rule nor is there one authority, like the American Medical Association, that states what the “standard of care” is.
Medical Experts Establish the Standard
Under Virginia law, the standard of care is “what a reasonably prudent doctor (or health care provider) would have done in similar circumstances.”
Virginia’s medical malpractice act puts the burden of proof on the plaintiff to prove that the injury would not have occurred if the doctor treated the patient within the “standard of care.” Both the defense and the plaintiff will offer an expert to testify on the standard of care.
Does that sound simple? Yes, but of course, it’s not. A defense medical expert might testify that “that’s how it’s done” or “most doctors do this.” The standard of care does NOT reflect what most health care providers might do in similar circumstances. Just because a practice is common does not mean that it is what a reasonably prudent provider would do in similar circumstances. Some doctors may be wrong in their approach and should change to conform with what a “reasonably prudent” doctor would do.
The role of the medical expert cannot be overstated nor undervalued. Identifying the very best experts in the specific field of medicine for each case is paramount in our practice. Sometimes, however, the jury is faced with directly competing experts. How do we help the jury understand the “standard of care”?
The Jury’s Common Sense
I recently tried a failure to diagnose cancer case in which the two very well qualified experts disagreed about the standard of care. Our expert teaches. at Harvard Medical School and practices at Dana Farber Cancer Institute. The defense expert was similarly trained and experienced. How does a jury decide who is right?
This happens in virtually every medical malpractice trial—but we don’t often lose. Why? We urge the jury to use their common sense in weighing expert testimony. It has to be not just believable, but subject to critical analysis.
For example, the failure to diagnose cancer case rested on whether the health care provider violated the standard of care by not ordering any testing for a patient who reported feeling a lump in her breast. Applying common sense can help a jury in this situation. Common sense, for most people, is to take the safest, most prudent course.
The Jury Establishes the Standard
The jury must understand at the outset that they are empowered to determine the standard of care in the case before them. When the experts disagree, the jury must decide. It can be very stressful for the jury and deliberations can be long and intense. While we spend years preparing evidence and experts for the jury, ultimately the jury has to weigh the evidence and apply their common sense.