VoirDire_Spring 2016 (002)

Distinguishing Due Care from
Standard of Care in Medicolegal
Cases — Does it Matter?
By Robert A. Beatty, M.D.
Over the decades,
resolution
of medical
malpractice
lawsuits has
evolved almost
exclusively to the
negligence rule, applying standard of
care that factors in technical changes
in medicine. These by necessity
require expert witnesses for defense
and plaintiff in order to place the
issues into the context of a changing
world. The prescient and very
workable formula by defining the
standard “that the doctor must have
and use the knowledge, skill, and care
ordinarily possessed and employed
by members of the profession in good
standing” has universal acceptance. 1
However, the use of the word
“care” is not defined. Care could
imply “due care,” which traditionally
is dealt with by the rule of strict
liability. But as Epstein has written,
the similarities between negligence
and strict liability are so great that
the vast majority of cases are decided
the same way under each rule. 2
As a neurosurgery expert witness
for both plaintiff and defense, I have
observed that due care issues have
become more common. However,
both due care and standard of care
frequently play a role in the same
case. Due care is traditionally
considered under the strict liability
rule and is usually a prima facie case
based on manuals and protocols,
which prescribe warning, proper
usage, etc. in an industrial setting.
In the medical world, national
consensus groups of well-meaning
experts have published goals and
treatment algorithms while being
careful not to state that deviations
from these recommendations breach
the standard of care, for example,
whether the management of the
head injured patient does or does
not require a brain scan. 3 The same
reluctance to establish standards
applies to journal and textbook
authors and editors who recognize
there are few absolutes in medicine.
A dogmatic statement appearing in
a medical book or article or even a
judicial decision does not by itself
establish a definitive standard of
care.
There are a number of reasons
why due care cases have become
more common. In 1996 the Joint
Commission on Accreditation of
Health Care Organizations adopted
a formal policy addressing events
in hospitals which were described
as “sentinal events” severe enough
to cause death, permanent harm,
or severe temporary harm which
requires intervention to sustain life. 4
These events chiefly include due care
deviations, common sense deviations
constant in time and independent of
technical changes, such as surgery
on wrong body part or wrong
patient, instrument or object left in
a surgical patient, wrong blood type
transfusion, radiation treatment to
wrong part of body, infant abduction
or discharge to wrong family, rape
in the acute care setting, unexpected
death in a full term infant and suicide
in the acute care setting. Most of
these are prima facie cases.
It is not always clear who is
responsible for these events, the
physician or a hospital employee.
For example, an older edition of
Prosser and Keeton on torts states
that the operating surgeon may be
required to “keep an eye” on the
sponge count rather than leave it to
the nurse. 5 Those of us trained in
the Harvey Cushing neurosurgery
tradition are taught never to lift one’s
eyes from the surgical field. Further,
the universal use of the microscope
and, recently, robotic surgery make
it nearly impossible for the surgeon
to keep track of the sponge count. A
deviation here is the responsibility
of the hospital and does not fall
under the concept of respondiate
superior. By making these comments
I have shifted a rather clear due care
deviation to one of standard of care,
not so clear.
In 2001 the term “never events”
was introduced by The National
Quality Forum, which lists the
sentinal events plus others totaling
29 currently. 6 Included on this list
are several that should never happen
but do happen even with the best
of care. Examples include serious
injury or death of a patient who falls
or is able to get out of restraints
or climb over bed rails. Another
is when a patient receives care by
someone impersonating a health care
provider. These are not due care
guidelines with the same certainty as
wrong person or wrong site surgery.
One of the most significant
never events is death or serious injury
because of failure to follow up or
communicate laboratory, pathology,
or radiology results. One of the few
due care protocols, developed by
the American College of Radiology,
is the requirement for a radiologist
to communicate a significant
radiographic result to the ordering
physician. 7 This protocol outlines
timely, common sense exchange of
information, constant in time and
unrelated to technological changes,
a due care concept easily understood
by a jury.
Another growing influence on
medical care has been the emphasis
on cost containment. In each of the
five medical journals I read monthly,
there are one or two articles justifying
certain medical practices based on
cost containment, usually limiting
testing. Twenty years ago there were
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Spring 2016 • Voir Dire