- Carla Ford, MD
- John Reardon, JD
- Tom Augello, CRICO
[Host, Tom Augello]
For many in the medical profession, some of the basics of law and malpractice claims are a little mysterious. We know there are elemental questions that must be answered “yes” in order to have a successful claim: did the defendant provider have a duty of care to the patient? Did the patient suffer harm? Was the defendant negligent? And, was the negligence the cause of the patient’s harm? We’ll focus on the issue of negligence in this edition of our podcast. The key question about negligence is whether or not the provider failed to meet the “standard of care.” But how do we know what the standard of care is, when we review an individual case?
To help answer this question, we are joined now by two experts from both professions involved: Dr. Carla Ford, an internist and consultant for CRICO. And John Reardon, a defense attorney and partner with Hamel, Marcin, Dunn, Reardon, & Shea, PC in Boston.
Carla, John. Thank you for joining us. Let’s start off with the legal definition of “Standard of Care.” John, what’s that?
[John Reardon] Well, that’s the million dollar question Tom, and it’s why we’re here today. I’ve been working with the CRICO insured since the 1980’s, and I would say in almost every matter that I’ve handled for them, the first question that the doctors, (or the nurses for that matter or the physician assistants) want to know is, what is the standard of care? Who is judging me? Why am I being put in this position? And I think Carla, that’s the type of question that you have to deal with as an expert reviewing these cases for CRICO, correct?
[Carla Ford] Absolutely. People ask, ‘Is it written down somewhere? What is the standard of care?’ And it isn’t. It’s basically established at a trial through expert testimony where each side has their own expert, and the jury is essentially instructed to listen to both sides and sort of see who they believe more. And also, do they believe the defendants?
[Reardon] But what happens, as Carla noted at trial, is each side has expert witnesses come in, and the experts actually tell the jury what the standard of care is. And there is a little bit of a competition there. But what I could do now, Tom, if it’s okay with you—and it might be helpful as an initial step in this discussion—is to tell the individuals who are listening what the jury is told by the judge about how they evaluate the standard of care.
Q. Yeah, that’d be great.
[Reardon] Okay, it’s a little bit of an abbreviated version, but it’s exactly what the jurors would hear in the Commonwealth. So I’m reading it as it’s a physician who is being sued in this case, but the same set of standards apply to a nurse practitioner, a nurse, physician’s assistant, health care worker, mental health care worker, whatever the case may be. So the judge tells this to the jury at the end of the case. So they’re told the following: The physician’s responsibility is to exercise the degree of skill and care of the average qualified physician practicing in the defendant’s area of specialty. Part of the standard of care is that in cases of doubt, the physician will use his or her judgment in accordance with accepted medical practice for a physician in the same area of specialty.
The fact that in retrospect, the physician’s judgment was incorrect is not in and of itself enough to prove medical malpractice or negligence. Doctors are allowed a wide range, (and whether or not the judge puts in the word “wide,” is a debate we have in each case) but doctors are allowed a range in the reasonable exercise of professional judgment and they are not liable for mere errors of judgment so long as the judgment they made does not represent a departure from the requirements of accepted medical practice. In other words, a doctor is liable for errors or judgment only if those errors represent a departure from the standard of care. A doctor is not judged by standards of perfection or excellence or by standards that apply today but by whether the doctor had and used the knowledge, skill, and care possessed by the average qualified physician in his or her specialty at the time of the alleged malpractice.
The next instruction that the jurors are told in this, is that evidence that a doctor who testifies in a case or any other doctor might have undertaken a different course of treatment is not in and of itself that the defendant’s treatment was negligent or the deviation from the standard of care. So in many of the cases we do see, there is a decision that has to be made. Do they operate or do they observe? Do they give a medication? Or do they not give a medication for a couple of days? And just because another doctor would do it differently than you doesn’t mean it’s a deviation from the standard of care.
Q. So Carla, they don’t have to be perfect?
[Ford] No, and I think that that’s something we really want to reassure our providers about. It isn’t malpractice to be wrong at the end of the day when all the tests are in. It isn’t malpractice to disagree with your colleague about the best way to treat a patient.
Certainly, there are cases in which there is a clear error. For instance, medication errors; someone prescribed the wrong dose or read the name of the medication wrong. Those things are clear errors. But the vast majority of our cases really come down to clinical judgment, and it’s important for providers to realize that they do not need to be perfect. And it is not that you would necessarily agree all the time with your colleagues, or that you would adhere to a particular guideline depending upon what the clinical situation is. So I think the important thing is to be thoughtful, to be careful, to follow-up on the tests you order so that there are no handoff issues, and then to document what you’ve done.
Q. So the standard has room for variation among providers.
[Reardon] Absolutely. That’s a key element to this.
Q. We talked a little bit about guidelines. Are guidelines the same thing as the standard of care.
[Ford] So Tom, guidelines are interesting and, of course, there are more and more of them. I think someone said the great thing about guidelines is that there are so many to choose from. But, for instance, with regard to screening tests, different associations of physicians may have different recommendations. For instance, the American College of Chest Physicians may have a different recommendation on anti-coagulation than the American College of Physicians. So there’s a lot of variability. But again, having a considered approach—certainly you would want to factor in the guidelines and they are important in terms of clinical care— but they’re not hard and fast.
Q. And John, have you had experience with this in the courtroom?
[Reardon] Yeah, guidelines in fact are a huge issue in the trial of these matters. I think a good example of it is that we see PSA testing cases because the guidelines put out by the urological associations may be different than that of the primary care doctors, and you need to be aware of those. So what happens at a trial in a matter like this, if you didn’t get a PSA, they’ll try to put up the literature and the guidelines promulgated by those institutions or by the department of your hospital saying this is what you should have done. Whereas there may be other guidelines that are more supportive of your position. So while guidelines do not define the standard of care in and of themselves, they certainly are a tool for the jury to consider and a tool that the experts on both sides would be using to put their position forth.
Q. Is the standard different for academic doctors versus community practitioners, or residents versus attendings?
[Ford] Well, usually by the time cases get fully developed or they get towards trial, all of the parties that were involved have been named. So typically, if a resident is named, an attending is also named in that case. But the places that you see problems with the residents is primarily a situation where the patient’s status has changed and the resident fails to inform the attending and get input from the attending, then they may be the one that is most liable or negligent in that case.
[Reardon] A good example of that, Carla, is a case I’ve had at a teaching hospital where it was a resident working on a patient and the patient, a young individual declined rapidly. And the resident went forward with a lumbar puncture in the patient, which caused a stroke-type event to happen with a bad outcome. Now the resident never informed the attending physician before taking this step, and the resident got sued in that case. Now the attending physician came in to their support and said it was the exact right decision to make, and they would have done the same thing if they had called them. But in that case, the resident ended up being sued and the attending didn’t because the information was not communicated back and forth. Whereas if they communicated to the attending and the attending said, “Yes, that’s the right course to follow…” they both would have been involved in the lawsuit for that matter. So just as an example.
Q. But it’s not correct to say that there is a separate standard of care for residents and a separate standard of care for the same work by attendings?
[Reardon] No, at least in the Commonwealth of Massachusetts—and this has been ruled on our Appellate Courts—that when the jury is instructed about how to evaluate them, or you solicit your expert testimony, it is the deviation from the standard of care of the average qualified physician practicing in that specialty. And that’s why it’s important for the residents—they’re working under the direction of an attending physician—to involve them in their treatment of the patients. You had mentioned briefly earlier, Tom, about academic institutions and community hospitals and, in fact, the standard is the same for both of those institutions, just like with the residents. It is the average qualified physician, or neurosurgeon, or primary care physician, or nurse or doctor who are practicing. That’s the standard that they’re held to, whether it’s at a major academic institution or a community hospital out in the suburbs.
[Ford] I wanted to ask John actually, is there a captain of the ship philosophy or does that hold in Massachusetts, the sort of captain of the ship?
[Reardon] Yeah, what an on-point question when we talk about the residents. And it makes you feel bad when the residents, interns, medical students come in to see you and they say, ‘Well, you know, I wasn’t in charge, it was an attending. It was an attending, so I mustn’t be involved, I mustn’t be responsible for this.’ And it actually can cause a lot of stress between the relationship to the individual. But no, in Massachusetts, there is no captain of the ship doctorate.
An attending physician is not responsible for the independent decisions made by a resident on a patient that they’re responsible for. The only time an attending gets in trouble for the actions of a resident, is if they give the resident too much authority beyond which they’re qualified to do. So again, if we want to take classic brain surgery: if a neurosurgeon gave a first-year resident in their six-year program too much leeway in performing brain surgery, they may be held negligent for doing that. But they’re not negligent for the performance of any medical decision or treatment rendered appropriate for the level of training that the individual is at.
I do have a good example though, Tom, that I like to give in terms of medical malpractice. Two things, and Carla sees this all the time. So many of the physicians, they care so much about what they do that if they have a bad outcome, they automatically really get down on themselves and think they must have done something wrong. Well the case law and I won’t read it now, but part of the jury instructions specifically say to the jury: just because there was a bad outcome doesn’t mean the doctor did something wrong. You can’t read negligence into that, which I think is very important.
And the second example I would like to mention is, and it’s a good example, of an individual who had kidney cancer and they had a PET scan done in February to see if there was any metastasis and the PET scan came back completely normal for the reading. Less than a year later, unfortunately, they developed esophageal cancer. And they had another PET scan done to evaluate the esophageal cancer, and at that time, the individual interpreting it said, ‘the uptake at the esophageal junction increased from February from when we looked at it a year ago.’ And so meaning it was there back then. And they were sued and they say: Geez if you had told us about the esophageal uptake a year ago, we would have been able to cure this cancer. Fortunately, we went to trial on that case, and it was fine for them not to mention the uptake back a year ago at the esophageal junction, because 25 percent of the people have uptake because of spicy food they ate the night before. And there was no indication that the physician should have mentioned it at that point in time. So I think two good examples of things that people feel bad about or think they can get sued for, but the standard of care as we’ve been talking about today ended up saying it was okay for them to practice in that way.
[Ford] To respond to what John just said. By the time we get to trial, everyone has retrospect, everyone can look back and see what happened. But it’s critically important when evaluating a case as I do, or as our experts do, is to understand what did they know at the time, what was the information that was available, who were they talking to? Were the test results back yet? And so all these cases, you know, five, six years from now that get, everyone’s looking backwards, that’s not what’s important. What’s important is the care as it developed, the story as it developed for the providers.
I think I just want to say in conclusion, I want to just reassure our providers that you don’t have to be perfect. You don’t have to be right. You need to take your training and your abilities as a diagnostician and bring a thoughtful, careful approach to the patient. You do your best. You are careful that the loose ends don’t fall, that you’ve checked up on the things you said you would, checked up on the test results that you ordered, and arrived at a differential diagnosis and then a provisional diagnosis and treatment. As long as those components have been met, you really don’t have to be perfect and I think it’s important to realize that and, of course, be sure to document what your thought process was.
Thank you. Dr. Carla Ford, internist and consultant for CRICO, the group of companies owned by and serving the Harvard medical community with professional liability, claims management and patient safety services. And John Reardon, a defense attorney and partner with Hamel, Marcin, Dunn, Reardon, & Shea, PC in Boston. I’m Tom Augello.