The “Standard of Care” isn’t Standard in Medical Malpractice. Why “Standard of Care” is so critical to your case.

Medicine is a science, yes, but it is also an “art” involving interpretation and analysis. In treating a patient, a physician has to make decisions; decision-making involves weighing available evidence, making a judgment, and choosing a course of action. The challenge for you, if you are a victim pursuing a medical malpractice case, is that your attorney will need to show that your treatment violated the “standard of care.”

The problem is that there is no “standard.”

Some instances of negligence so obviously violate proper care that defendants will stipulate or admit to the violation. An example is when a surgeon operates on the wrong limb, or in one of my cases, on the wrong side of the face.  In a case like that, the lawsuit can move forward on the damages caused by the negligence and work toward winning fair compensation for the injured.


Medical malpractice attorney Gary B. Mims explaining the legal term “standard of care” to George Mason University students.

More often, however, the “standard of care” is what medical experts say it is. It is not a medical term but a legal one and it is truly a matter of opinion. Both the plaintiff and defendant will elicit the testimony of experts to establish what “a reasonably prudent doctor would do in similar circumstances.” At trial, the jury is faced with choosing which “standard” to apply.

Choosing a Medical Expert

Identifying the best medical expert to establish standard of care is one of the most critical decisions we will make in your case.  In this highly-specialized area of law, the experience of your attorney and the credibility of your expert really matter. Often, it makes all the difference in the outcome of your case.

Over the past 40 years as a trial lawyer, I’ve worked with a host of preeminent physicians who yield extensive experience and professional respect in their specialties.  I seek physician scholars working in teaching hospitals and in research who are able not only to explain the medicine but can help the jury appreciate what is sometimes a fine line in standard of care.  The expert’s ability to effectively communicate complicated aspects of your case is paramount, which is why I often choose experts who are also professors at some of the finest institutions in the country.

Why Standard of Care Matters So Much in Your Case

Medical malpractice lawsuits involve “negligence,” “standard of care,” “causation,” and “damages.” To succeed in a medical malpractice suit, the plaintiff must prove that the defendant was negligent and that negligence caused injury.  To prove negligence, the plaintiff must prove that the physician violated the standard of care and that that negligence caused an injury.  The case also involves detailing the damages caused by the injury.

Virginia’s Standard of Care Statute

By statute in the Commonwealth of Virginia (Code § 8.01-581.20), “the standard of care…shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth and the testimony of an expert witness, otherwise qualified, as to such standard of care, shall be admitted…”  The statute further states that “any health care provider who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of practice in which he is qualified and certified.”

Our Firm is Experienced in Medical Malpractice

We are a personal injury firm with exceptional experience in medical malpractice. With that experience comes a passion for seeking fair compensation for those injured due to the negligence of others. Our expertise comes from 40 years  of trial experience and hundreds of complicated cases that we have successfully resolved, like these:

$1 Million for Oxygen-Deprivation Brain Damage and Death of 16-Year-Old Plus Policy Changes

Corrective Facial Surgery Performed on Wrong Side, Resulting in New Nerve Injury

Patient Undergoes Elective Knee Surgery and Awakens With Her Leg Amputated

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