Breach Of Duty By Doctors Is Negligence
Doctors and health care professionals are expected to act toward patients in a professional manner when observing, treating and caring for them. When this duty is not taken seriously it opens up the fact that the care giver has been negligent.
The duty owed by the doctor or other health care professional—that which is ordinarily used by reasonably well-qualified doctors or other health care professional—defines how the doctor or health care professional is required to act toward the patient. This is known as the standard of care. If the doctor, nurse, hospital, etc., does not act in conformity with the standard of care, then she/he has breached the duty owed to the patient and is negligent.
The standard of care can be defined through a number of sources. First, medical literature often defines the standard of care for a medical professional. Medical libraries and online resources such as PubMed are excellent sources to determine what the standard of care is for any type of medical professional. Second, internal policies, contracts, and government regulations can be used to evidence the standard of care owed by a medical professional. Ultimately, however, the patient’s medical expert witness (with some exceptions) will provide testimony based on their education, training, and experience regarding what is required of the medical professional and if the doctor committed medical malpractice by not complying with the standard of care.
There are many examples of medical professionals breaching their duty to their patients: ignoring or misreading laboratory results, failing to account for a patient’s medical history, failing to warn a patient of known risks, failing to review the patient’s current medications, failing to adequately monitor or treat symptoms, or prescribing contraindicated medications. A poor medical result, however, does not mean that the doctor or medical provider committed malpractice. Your doctor or medical provider must have acted in a manner that was not reasonable and a breach of the standard of care.
In some instances, the patient may prove the medical provider was negligent through a doctrine called res ipsa loquitur (Latin for “the thing speaks for itself”). The doctrine of res ipsa loquitur allows the patient to obtain an inference of negligence to be drawn if certain conditions are met without having to prove specifically what the medical professional did or failed to do that was negligent. The patient must prove the following conditions:
- that the injury or damage to the patient was proximately caused by (name of the instrumentality or occurrence) which was [doctor’s] responsibility to manage and control; and
- that the event causing the injury or damage to the patient was of a kind which does not ordinarily occur in the absence of negligence on the part of the in control of [the instrumentality] or [that portion of the procedure].
Typically, an expert can provide this testimony. But an expert is not required if (1) and (2) are within the common knowledge of a lay person. Breach of duty by doctors is in fact negligence as explained above.
Now that you know a little bit more about the standards by which care givers are held you can make a more informed decision on if a doctor or provider you have seen has breached their duty as a care giver. Negligence by a doctor is something to take very seriously. If you have been mistreated by a doctor give us a call to discuss your particular case and what took place. The Davis Kelin Law Firm can be reached at 505-242-7200.