the standard of care

1. The Standard of Care malpsocmalpsoc

3. (Cal. App. 1992) P�s complaint? Failure to start the anti-HBS surrogate testing for AIDs by Irwin Blood Bank in early 1983; inadequate questioning of donors. (there were MANY cases like this) who is relying on customary practices tohelp them? Blood bank no blood bank did what P wants [though one of P�s experts seems to disagree] in an ordinary negligence case would this take the case from the jury? No, T.J Hooper (5) why not conclusive? Whole industry could have erred. {P says regional monopoly led to sloppy practice here] does court say this case belongs to the jury? No [jnov, aff�d] custom=conclusive for professional negligence blood band-=professional? Yes (majority) - 4 Did P have experts on the s/o/c? Yes, but not allowed to challenge established custom. P�s complaint? Failure to start the anti-HBS surrogate testing for AIDs by Irwin Blood Bank in early 1983; inadequate questioning of donors. (there were MANY cases like this) who is relying on customary practices tohelp them? Blood bank no blood bank did what P wants [though one of P�s experts seems to disagree] in an ordinary negligence case would this take the case from the jury? No, T.J Hooper (5) why not conclusive? Whole industry could have erred. {P says regional monopoly led to sloppy practice here] does court say this case belongs to the jury? No [jnov, aff�d] custom=conclusive for professional negligence blood band-=professional? Yes (majority) - 4 Did P have experts on the s/o/c? Yes, but not allowed to challenge established custom.

4. External Benchmarks Resembles negligence per se both tell jury to apply external benchmark not decide for itself what reasonability requires Result: jury makes factual inquiry, but does not make the crucial value judgment.

5. External benchmark - 2 D fails to test for glaucoma. Jury�s inquiry=�was it customary to do so?� Not up to jury to decide if optometrist should do so. What IS accepted practice, not what OUGHT to be MDs (not jury) decide what reasonable care requires Assumption: customs are usually reasonable in medicine D alleged to exceed posted speed in school zone. Issue: �did D violate the statute requirements� Not �was his speed reasonable� Legislature already decided reasonable speed Result: courts delegate standard legal setting power to private parties (neither court nor legislature) D alleged to exceed posted speed in school zone. Issue: �did D violate the statute requirements� Not �was his speed reasonable� Legislature already decided reasonable speed Result: courts delegate standard legal setting power to private parties (neither court nor legislature)

6. Missouri Law Medical Negligence is �the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant�s profession.� [MAI 11.06] Ordinary negligence �the failure to use that degree of care than an ordinarily careful and prudent person would use under the same or similar circumstances� [MAI 11.02] normative test: what would a prudent person do? That�s what all people should do don�t ask what �ought� to be done, but what �is� done don�t ask what �reasonably prudent� doctors would do. Just ask what�s ordinarily done assumption? that custom=reasonable care Ordinary negligence �the failure to use that degree of care than an ordinarily careful and prudent person would use under the same or similar circumstances� [MAI 11.02] normative test: what would a prudent person do? That�s what all people should do don�t ask what �ought� to be done, but what �is� done don�t ask what �reasonably prudent� doctors would do. Just ask what�s ordinarily done assumption? that custom=reasonable care

7. Aneurysm Problem in Supp. Iowa is a customary care state. Will the jury apply the Hand formula (as this attorney hopes)? What is the standard of care? Breach? Does the MD�s lack of expertise in intracanial surgery matter?

8. Battle of the Experts What if P has an expert who says it WAS the norm to schedule emergency surgery for an aneurysm of that size?? What is the foundation that both experts will need to have in order to testify? Is it relevant what the P�s expert thinks MDs should do? Jury decides which expert to believe Knowledge of clinical practice Jury is suppose to ask if D really did follow the (a) custom. Quaere whether they listern to RATIONALESand decide if P has convinced them that reasonable MD should do emergency surgery? If so, they convert the C-based standard into a jury-determined RP test.Jury decides which expert to believe Knowledge of clinical practice Jury is suppose to ask if D really did follow the (a) custom. Quaere whether they listern to RATIONALESand decide if P has convinced them that reasonable MD should do emergency surgery? If so, they convert the C-based standard into a jury-determined RP test.

9. Magic Words to Avoid D.V. Are you familiar with the standard of care? Do you have an opinion whether the D violated it in her care of P? What is your opinion? What is the defendant�s objection to this testimony? Rephrase the direct exam for the P.

10. 2. Reasonable Physician Standard Most famous rejection of custom = Helling glaucoma test; negligence as matter of law; no experts needed! Not well received But many other courts quietly decline to use a custom-based standard. Let P argue that custom is not reasonable E.g. Nowatske Not ususally frontal challenges (but some, like blood banks) usually instructions (occasionally expert & d.v.)Not ususally frontal challenges (but some, like blood banks) usually instructions (occasionally expert & d.v.)

11. Nowatske v. Osterloh (Wisconsin 1996)

12. Status of R.P. standard 1/4 expressly reject deference to custom -1/4 use �reasonable physician� test not yet expressly rejecting reliance on custom to define �reasonable physician� test still need an expert to educate the jury but expert need not do head count and can challenge custom directly

13. Back to Aneurysm Problem Can P challenge custom of not scheduling emergency surgery? Will Hand formula help direct jury? Here? How should P�s attorney phrase the crucial question of her expert witness? Here: low probability not even symptomatic!!! Accidental discovery huge stakes low cost? More risk of complications reschedule elective surgeryHere: low probability not even symptomatic!!! Accidental discovery huge stakes low cost? More risk of complications reschedule elective surgery

14. Practical Implications Standard: Custom RP Custom conclusive just a factor instructions custom reas. Phys. Expert fdn aware of C aware of science �magic words� viol�d C not reas.care evidence effective?risk? CPG

15. Fudging Magic words reasonable not the standard of care loose use of �accepted� (by whom?) Often little foundation evidence effectiveness CPGs