The standard of care is not so standard.

Malpractice lawsuits affect most physicians at some point in their career. Proving that malpractice has been committed is based on substantiation of a variety of elements, including that the patient was rendered care that was "below the standard" of care. While many physicians believe that the "standard" will be judged objectively on the basis of published scientific sources and accepted conventions, the standard is established rather by the testimony of expert witness(es). It is the expert testimony that sets the standard and is proof of the standard. The testimony is open for acceptance or rejection by the judge or jury for a variety of nonscientific reasons. We review what the defendant doctor might expect regarding proof required to establish breach of the standard of care and what the prudent expert should be obliged to demonstrate.

The elements of medical malpractice: an overview.

Most physicians will be involved in a medical malpractice case sometime in their career in one of several capacities, such as defendant, a treating physician, or an expert witness. Providing that malpractice has been committed is based on substantiation of a variety of elements and issues. This article offers an overview of the basic theories or types of claims of malpractice: 1) lack of due care; 2) lack of informed consent/battery; 3) vicarious liability/respondent superior/negligent supervision; 4) injury to third parties; and 5) abandonment. While these elements hold true in general, the laws of malpractice, the procedures involved, and the judicial process vary from state to state and from country to country.