From Yale U: Interesting article on standard of care and medical malpractice

http://www.ncbi.nlm.nih.gov/pubmed/22395869

Clin Orthop Relat Res. 2012 Mar 1. [Epub ahead of print]

Beyond the Standard of Care: A New Model to Judge Medical Negligence.

Brenner LH, Brenner AT, Awerbuch EJ, Horwitz D.

Source

Department of Orthopaedics and Rehabilitation, Yale University, New Haven, CT, USA, lbrenner@brennerandbrenner.com.

Abstract

BACKGROUND:

The term "standard of care" has been used in law and medicine to determine whether medical care is negligent. However, the precise meaning of this concept is often unclear for both medical and legal professionals.

QUESTIONS/PURPOSES:

Our purposes are to (1) examine the limitations of using standard of care as a measure of negligence, (2) propose the use of the legal concepts of justification and excuse in developing a new model of examining medical conduct, and (3) outline the framework of this model.

METHODS:

We applied the principles of tort liability set forth in the clinical and legal literature to describe the difficulty in applying standard of care in medical negligence cases. Using the concepts of justification and excuse, we propose a judicial model that may promote fair and just jury verdicts in medical negligence cases.

RESULTS:

Contrary to conventional understanding, medical negligence is not simply nonconformity to norms. Two additional concepts of legal liability, ie, justification and excuse, must also be considered to properly judge medical conduct. Medical conduct is justified when the benefits outweigh the risks; the law sanctions the conduct and encourages future conduct under similar circumstances. Excuse, on the other hand, relieves a doctor of legal liability under specific circumstances even though his/her conduct was not justified.

CONCLUSIONS:

Standard of care is an inaccurate measure of medical negligence because it is premised on the faulty notion of conformity to norms. An alternative judicial model to determine medical negligence would (1) eliminate standard of care in medical malpractice law, (2) reframe the court instruction to jurors, and (3) establish an ongoing consensus committee on orthopaedic principles of negligence.