The Standard of Care
Two Approaches
• Conform with customary practices
– Majority rule
– “hornbook” law
– Osborn v. Irwin Mem. Blood Bank (Cal App)
• Reasonable physician standard
– growing minority uses
– Nowatske v. Osterloh (Wis)
1. Customary Care Standard
Osborn v. Irwin Mem. Blood
Bank
(Cal. App. 1992)
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.
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
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]
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?
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?
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.
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
Nowatske v. Osterloh
(Wisconsin 1996)
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
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?
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
Fudging
• Magic words
– reasonable
– not the standard of care
– loose use of “accepted” (by whom?)
• Often little foundation
• evidence
– effectiveness
– CPGs