Topic:
MEDICAL PERSONNEL; NEGLIGENCE; PHYSICIANS;
Location:
MEDICAL PERSONNEL;
Scope:
Court Cases; Connecticut laws/regulations;

OLR Research Report


The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH




July 31, 1997 97-R-0892

TO:

FROM: John Kasprak, Senior Attorney

RE: Standard of Care for Medical Practitioners

You asked for information on the “standard of care” for medical practitioners including what the standard is, how it is established, and relevant court cases, particularly in Connecticut. (Most of the information provided concerns the standard of care as it applies to physicians, but is generally applicable to other health professionals.)

SUMMARY

“Standard of care” can be defined and discussed in a number of ways, depending on the context in which it arises. There can be an “ideal” standard of care, an academic standard of care, a practical standard of care, a medicolegal standard of care, an economic standard of care, a personal standard of care, and a newly emerging standard of care in the managed care context (see Odysseus Argy, “Standards of Care,” Journal of the American Medical Association, May 1, 1996, p. 1296).

While all of these views of the standard of care are important and factor into a practitioner's decision-making process, most of the focus given your questions, is probably on the medicolegal standard of care. This refers to the level of care a practitioner believes he must give to protect himself from malpractice allegations. That level of care may even go beyond what the practitioner believes is medically necessary.

Stated generally, the standard of care is that degree of skill and care employed by qualified practitioners in the same “school” or same line of practice. Until recently, practitioners were bound to meet the standard of care determined by other physicians in the same locality. But the potential for unjustifiable divergence in standards of medical care based solely on geography, particularly given modem access to technology in almost all states, has led most states to rethink their “locality rule” approach to standard of care.

As a result, strict interpretation of the locality rule has given way in most states to a broader version of standard of care. Now in most states, the local rule states that a practitioner should be compared to those practicing in the same or similar locality. A Maryland court has even suggested that, because of modern communication and transportation, all physicians should be held to a national standard of care.

Almost all states have incorporated a national standard of care for specialists. But no state has moved wholly to national standards for all physicians (see Sam McConkey, “Simplifying the Law in Medical Malpractice: The Use of Practice Guidelines as the Standard of Care in Medical Malpractice Litigation,” West Virginia Law Review, Winter 1995 p. 491-523).

Connecticut law requires a physician to exercise the degree of skill, care, and diligence that is customarily demonstrated by physicians in the same line of practice. Connecticut has moved over the years from a strict locality rule to a broader-based view of standard of care.

STANDARD OF CARE

General Principles

The universal rule is that a physician has the duty to use reasonable care and skill in diagnosis and treatment and are liable to their patients for failure to exercise requisite skill and care (61 Am Jur 2d, “Physicians Surgeons and Other Healers,” 205). The standard by which the requirement of reasonable skill and care is determined is the average standard of the profession. Basically, it is that degree of care, skill, and proficiency exercise by reasonably careful, skillful, and prudent practitioners in the same class acting under the same or similar circumstances (Weaver v. Robinson, Ind. App. 1 Dist.; 627 N.E.2D 442).

A practitioner is required to exercise the average degree of skill, care, and diligence exercised by members of the same medical speciality community in similar situations. In effect, the practitioner, by taking a case, represents that he possesses the ordinary training and skill possessed by those practicing in the same or similar communities, and that he will employ such training, care, and skill in the treatment of patients. The standard expected “is not what is actually the average merit among all known practitioners from best to worst and from the most to least experienced, but the reasonable average merit among ordinarily good physicians” (61 AmJur2d 205).

System or School of Medicine

It is the general rule that a practitioner is entitled to have his treatment of his patient tested by the rules and principles of the school of medicine to which he belongs, and not by those of some other school, because a person professing to follow one system or school of medicine cannot be expected by his patient to practice any other. If he performs the treatment with ordinary skill and care according to that school of practice, he is not answerable for bad results (61 AmJur2d, 213).

State of Knowledge at Time of Treatment

The law recognizes that medical science is progressive. In determining the degree of care and skill which the law expects of physicians, there must be regard to the state of advancement of the profession at the time of the treatment. Treatment must be measured by the standards of the time in question, and not those which may have exited at some time in the past ( 215).

New Methods

A physician has a duty to keep up with the advancements made by his profession. Thus, a practitioner may adopt new methods as they are approved by the profession even if approval is not unanimous. This gives the profession the opportunity to make progress after the experimental stage in the development of a new methods, but it does not authorize trying contested experiments or methods on patients ( 217).

Locality or Pace of Practice; Geographic Proximity Rule

The character of the locality in which the physician practices has an important bearing on the requisite degree of skill and care that is required of him. Earlier cases adopted the so-called “strict locality rule” which required that a physician be held only to “that degree of diligence learning and skill possessed by physicians and surgeons of the particular locality where he practices” ( 217). But because the standard may be exceptionally high or exceptionally low in a given community, other cases have expanded the strict locality rule by arguing that the requisite standard of care should be determined not by that particular locality, but by the standards of physicians of ordinary skill and care in similar communities ( 218).

Other cases refer to the defendant's general neighborhood or vicinity and hold that in determining what constitutes reasonable and ordinary care, the test is that which physicians in the same general neighborhood or vicinity ordinarily have and exercise at the time in like cases. A 1969 Connecticut Supreme Court decision echoed this view:

the duty of the defendant in his capacity as a physician was to exercise reasonable care, skill, and diligence in treating the plaintiff as a patient. This duty was met if the defendant exercised the degree of skill and care which physicians in the same general neighborhood and in the same general line of practice ordinarily have and exercise in like cases (Levett v. Etkind, 158 Conn. 567, 573 (1969)).

Modern View, National Standard

The various geographical proximity rules have been modified by the increasing acceptance of a different view. Given that the trend is towards quicker dissemination of medical information (e..g, telemedicine) and more uniform methods of treatment, many jurisdictions are replacing the locality or community standard with a more broadly-based one. According to this view, the applicable standard of care is not based on any geographic locality. Instead, the standard of care in the practitioner's locality or in the general neighborhood of the locality is simply a factor in determining whether he exercised that degree of care and skill expected of the rest of the average practitioner in the class to which he belongs, when acting in the same or similar circumstances. This standard of care “is that established in an area coextensive with the medical or professional means available in those centers that are readily accessible for appropriate treatment of the patient ( 219).

Under this view, local practice within a geographic proximity is one, but not the only, factor to be considered in determining the degree of care and skill expected.

Standard of Care Depending on Level, Experience of Practitioner

A recent court decision in Massachusetts involving a medical malpractice action against a nurse and physician following post-operative injury held that the standard of care for first-year residents was the same as for other physicians (St. Germain v. Pfeifer, 637 N.E.2d 848 (1994)). In this case, one of the defendants, a first- year orthopedic resident, argued that a first-year resident should be held to a lower standard of care than more senior physicians. The Massachusetts court stated that while this issue has not yet be addressed in Massachusetts it has been considered in two other jurisdictions. In Centman v. Cobb (581 N.E. 2d 1286 (1991)), the Indiana Court of Appeals held that interns and first-year residents are “practitioners of medicine required to exercise the standard of care applied to physicians with unlimited licenses to practice.” And in Jenkins v. Clark, (454 N.E. 2d 541 (1982)), the Ohio Court of Appeals held that a trial judge acted properly in instructing that the applicable standard of care in a medical malpractice case involving a first year resident was “that of reasonably careful physicians . . . not that of interns or residents.”

The Massachusetts court in the St. Germain case stated “we agree with these opinions and we decline to apply a lower standard of care to residents from that we apply to other physicians.”

CONNECTICUT LAW

Overview—Relevant Cases

In Connecticut, a physician is required by law to exercise the degree of skill, care and diligence that is customarily demonstrated by physicians in the same line of practice (Logan v. Greenwich Hospital Assoc., 191 Conn. 282 (1983)). A physician must exercise such reasonable skill and diligence in all aspects of providing case and treatment to a patient (Allen v. Giuliano, 144 Conn. 573 (1957)). To prove that a physician has breached the legally required standard of care, a plaintiff must offer some evidence that the conduct of the physician was negligent (Snyder v. Pontaleo, 143 Conn. 290 (1956)). Except in the unusual case in which the want of care or skill is so gross that it presents an almost conclusive inference of want of care (Puro v. Henry, 188 Conn. 301 (1982)), the testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician (Shelnitz v. Greenberg, 200 Conn. 58 (1986)), and that the defendant failed to conform to that standard of care (Mather v. Griffin Hospital, 207 Conn. 125 (1988)). Further, the plaintiff must establish a causal relationship between the physician's negligent actions or failure to act and the resulting injury by showing that the action or omission constituted a substantial factor in producing the injury. (All of the above cases were cited in a 1997 Connecticut Supreme Court case, Edwards v. Tardiff (240 Conn 610 (1997)). In the Tardif case, the Connecticut Supreme court stated that

Physicians have a duty to exercise the degree of care that physicians in that particular field would exercise in similar circumstances. If the physician's treatment of a patient falls below the relevant standard of care, liability may be imposed if it is reasonably foreseeable that suicide will result if such care is not taken. Accordingly, we hold that a physician may be liable for a patient's suicide when the physician knew or reasonably should have known of the risk of suicide and the physician's failure to render adequate care and treatment proximately causes the patient's suicide (Edwards v. Tardiff, 240 Conn. 610, 618 (1997)).

From Local Standard to Broader Standard of Care

The Logan case (see above) provides a useful review of the change in the standard of care, as determined by the court, over time. In this case, the Connecticut Supreme Court stated, “In Geraty v. Kaufman, 115 Conn. 563 (1932), we rejected the notion that a physician was obliged to exercise only that degree of skill possessed by other practitioners in the community in which he lived and held that testimony of the general practice in this state concerning the particular medical procedure involved was properly admitted. . . . We affirmed that view that the general neighborhood is the entire state of Connecticut in Fitzmaurice v. Flynn, 167 Conn. 609 (1975). There we recognized that 'there may exist reason to disregard territorial limitations even with regard to state boundaries' but found no need then to decide that question. We also limited our definition of the general neighborhood to the boundaries of this state in Katsetos v. Nolan, 170 Conn. 637 (1976), again finding no necessity to decide whether that restriction should be expanded” (Logan v. Greenwich Hospital Assoc., 191 Conn. 282, 300-301 (1983)).

The Logan court continued, “We think the time has come to broaden the geographical limitation we have previously imposed to include the entire nation. Under contemporary conditions there is little reasons to retain this vestige of former times when there was a substantial basis for believing that the rural doctor should not be held to the standards of the urban doctor, since the latter had greater access to new theories and had more opportunity to refine this method of practice . . . . We are not aware of any differences in the educational background and training of physicians practicing in Connecticut compared with those in other states. Medical literature of significance is normally disseminated throughout this county and not confined to a particular state. We align ourselves with many other jurisdictions which ave in recent years abandoned similar geographical restrictions in medical malpractice cases” (Logan at 301-302). These other jurisdictions cited included Alabama, Georgia, Iowa, Kentucky, Maryland, Massachusetts, New Mexico, South Carolina, Washington, and Wisconsin.

Standard of Care and License Revocation

A 1948 Connecticut Superior Court case is instructive concerning standard of care and revocation of a physician's license to practice (Adam v. Osborn, 15 Conn. Sup. 419, (1948)). This case held that in order to make out a case of unprofessional conduct or negligence against a physician, it is necessary to prove not only what he did or failed to do, but also that the treatment in some particular way did not measure up to the standard of care required by him. What that standard of care is, is a matter of fact which must be proved by evidence, ordinarily by expert testimony.

In this case, the physician was seeking to stay the revocation of his license pending an appeal taken from the state medicine board and state health department's decision to revoke his license. The court stated that, “if it should appear on the applicant's appeal from the revocation of his license that the board had reached its conclusion that Dr. Adam's conduct in the treatment to the named patients had been unprofessional and negligent, without having before it at his hearing any evidence as to what the standard of care was which was required of him in those treatments but having relied exclusively on the general knowledge of the members of the board as to what the standard of care was, it is likely that the court would have to conclude that the board had acted illegally” (pp. 421-422).

Statutory Law

A Connecticut statute addresses the standard of care in negligence actions against health care providers. This section provides that “the prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable by reasonably prudent similar health care providers” (CGS 52-184c(a)).

If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a “similar health care provider,” under the law, is one who is (1) licensed by the appropriate regulatory agency of this state or another state with equivalent qualifications, and (2) trained and experienced in the same discipline or school of practice and such training and experience is the result of the active involvement in the practice or teaching of medicine within the five-year period before the incident that is the subject of the claim (CGS 52-184c(b)).

If the defendant provider is certified by a board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a “similar health care provider” is one who is (1) trained and experienced in the same specialty and (2) certified by the appropriate board in the same specialty (CGS 52-184c(c)).

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