Many people believe that medical malpractice is universal across the United States. While certain federal statutes mandate that malpractice standards be met in order for hospitals to receive Medicare/MedicAid funding, the true definition of what constitutes malpractice varies from state to state. Some, but not all, states require complex checklists and other safety procedures. Some states require that doctors work in teams, or coordinate with nurses in order to optimize care, while others only require that doctors not work unsupervised. Before filing a medical malpractice suit, you should consider the legal standards – in your particular state – that your doctor was subject to.
“Reasonable Standard of Care”
It is accepted in all fifty states that doctors must provide a “reasonable standard of care” to their patients. However, the exact nature of this care varies from state to state. This standard is set both by statute and by case law, and it varies widely across state lines. Therefore, before pursuing a malpractice action, it is necessary to talk with an attorney (such as Bottar Leone for New York state) who is experienced in the field of medical malpractice to determine the standard for your state. Some very severe mistakes may in fact not be beyond the standard of care, while sometimes very minor violations of that standard will subject a doctor or a hospital to very severe financial penalties.
Standards and Practices
In most states, the reasonable standard is what doctors and lawyers of the state have demonstrated, through practice and litigation, is the most responsible to follow. While not absolute, failing to meet generally accepted standards is seen as strong evidence that a doctor failed to provide a reasonable standard of care. If the doctor knew or had reason to know that others in his field were using certain techniques and protocols, then he or she should have considered and used them as well. Consider, also, that techniques which are not widely used but are widely known may be presented as a reasonable standard, especially if they are similar to but superior over contemporary techniques.
Another consideration in a medical malpractice case is whether or not there were intervening factors which might absolve the doctor of liability. Many states enable a doctor to be free from most or all of the malpractice liability if intervening circumstances can be shown to have caused the injuries. Some states, however, will ignore the intervening circumstances if the doctor’s behavior was egregious, negligent or otherwise clearly out of line.
Malpractice is inherently complicated, so if you think you may have a malpractice action, talk to a lawyer. Lawyers with experience in local law, such as Bottar Leone in the state of New York, will be able to inform you as to what your options are, what standards your doctor had to follow, and what you stand to recover. Then you can move forward and properly prepare your case.
Author Cathy Hughes is a legal researcher and certified mediator who specializes in neighbor-to-neighbor cases and community justice. She is a contributing writer for the law offices of Bottar Leone PLLC which, since 1983, has helped more than 9000 individuals and families secure just compensation.