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Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.
In the COVID-19 era, standard of care is still evolving. David J. Goldberg, M.D., J.D., discusses this and more liability issues to consider when re-opening your practice.
Dr. Virus once had a busy dermatology practice in a state. However, through an aggressive governor’s approach (Executive Order) to build business in the state, virtually every COVID-19 guideline developed by the Centers for Disease Control and Prevention (CDC) has been removed. Although the governor suggested the use of social distancing and facial masks, these are suggestions – not the law. Gyms, stores and movie theaters have all opened.
Dr. Virus is ecstatic. He can, he hopes, quickly rebuild his medical and cosmetic dermatology practice. Although he had required that his staff use gloves and masks, and followed all CDC guidelines, all rules are now relaxed. He is comfortable moving forward and has been assured by his governor’s pro-business daily conferences.
Hundreds of patients have returned to his office. As Dr. Virus reopens his office to its pre-corona status, one of his staff members becomes infected with the COVID-19. Within three weeks, almost 50 patients who had been seen in the office also become infected. Over the course of the next two months, eight patients end up on ventilators and three have died.
Numerous patients file medical malpractice lawsuits against Dr. Virus. Although upset about all the illness, Dr. Virus feels comfortable with his decisions because he followed his governor’s guidelines. However, the crux of the medical malpractice lawsuit is that he did not follow CDC guidelines. Who wins? Should Dr. Virus have ignored his governor’s guidelines in deference to the exacting CDC guidelines? What was he required to do? What was the reasonable standard of care?
Most courts note that the reasonable practitioner standard would state that physicians must follow what is reasonable under the circumstances involved. What defines the reasonable standard of care?
The standard of care is not necessarily derived from some well-known textbook. It is also not articulated by any judge. The standard of care is defined by some, as whatever an expert witness says it is, and what a jury will believe. In a case against any medical specialist, the specialist must have the knowledge and skill ordinarily possessed by a specialist in that field and have used the care and skill ordinarily possessed by a specialist in that field, in the same field, in the same or similar locality and under similar circumstances. A failure to fulfill such duty is negligence.
If the jury accepts the suggestion that Dr. Virus mismanaged the case and that the negligence led to damage of the patient, then the physician will be liable. Conversely, if the jury believes an expert for the defendant doctor, then the standard of care, in that particular case has been met. In this view, the standard of care is a pragmatic concept, decided case-by-case, based on the testimony of physician.
It is important to note that where there are two or more recognized approaches of dealing with a situation (in this case the governor’s executive orders vs. CDC guidelines), a physician does not fall below the standard of care by using any of the acceptable methods even if one method leads to a higher incidence of problems than another.
Finally, in many jurisdictions, an unfavorable result due to an “error in judgment” by a physician is not in and of itself a violation of the standard of care if the physician acted appropriately prior to exercising his professional judgment.
The standard of care is simply the way in which the majority of the physicians in a similar medical community would practice. If, in fact, the expert himself does not practice like the majority of other physicians, then the expert will have a difficult time explaining why the majority of the medical community does not practice according to his ways.
It would seem then that, in the perfect world, the standard of care in every case would be a clearly definable level of care agreed on by all physicians and patients. Certainly, in the COVID-19 era, this standard of care is still evolving. Unfortunately, with all suggested guidelines, there will be illness and there will ultimately be lawsuits. Time will tell.