The standard of care is defined by some as whatever an expert witness says it is, and what a jury will believe.
John is a 48-year-old man with a multiple squamous cell carcinoma and a history of immunosuppression. He is seen every six months for skin evaluation. Cancerous lesions have been treated with a variety of methods including electrical destruction, topical agents and Mohs surgery. Some lesions have recurred; others have not.
Ultimately the patient develops metastatic disease from a recurrent lesion. He dies, leaving behind multiple family members. The plaintiff's estate sues the treating dermatologist, contending that there must have been negligence and a breach of duty for the skin cancer to return. Perhaps more frequent dermatologic visits and or/more aggressive treatments would have prevented the unfortunate death of the family member. Was the dermatologist negligent? What will a jury decide?
Elements of negligence
There are four required elements for a cause of action in negligence. They are duty, breach of duty, causation and damages. The suing plaintiff's estate must show the presence of all four elements to be successful in the claim.
The duty of a dermatologist is to perform in accordance with the standard of care. Although the elements of a cause of action in negligence are derived from formal legal textbooks, 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 physician, 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 or similar locality under similar circumstances.
A dermatologist, plastic surgeon, otolaryngologist, internist or family practitioner evaluating and treating skin cancers will all be held to an equal standard.
A failure to fulfill such a duty may lead to loss of a lawsuit by the physician. If the jury accepts the suggestion that the doctor mismanaged the case and that the negligence led to damage of the patient, then the physician will be liable. In the case of skin cancer, misdiagnosis and/or mistreatment may both lead to damages and physician liability. Conversely, if the jury believes an expert who testifies 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, and based on the testimony of an expert physician. The dermatologist, or any other physician dealing with skin cancer, is expected to evaluate skin cancers in a manner of a reasonable physician. He need not be the best in his field; he need only diagnose and perform treatments in a manner that is considered by an objective standard as reasonable.
It is important to note that where there are two or more recognized methods of diagnosing or treating the same condition, a physician does not fall below the standard of care by using any of the acceptable methods even if one method turns out to be less effective than another method.
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.
Evidence of the standard of care in a specific malpractice case includes laws, regulations and guidelines for practice, which represent a consensus among professionals on a topic involving diagnosis or treatment and the medical literature, including peer-reviewed articles and authoritative texts. Although the standard of care may vary from state to state, it is typically defined as a national standard for dermatologists.
Did the dermatologist breach the standard of care? If so, will he be liable for negligence? The patient records are evaluated by an expert for the suing plaintiff. The records all appear to be reasonable. The plaintiff's expert refuses to testify because there is no evidence of malpractice by the defendant dermatologist. Six month evaluations are considered reasonable. There is no evidence to suggest that monthly visits would have stopped metastatic spread in this immunosuppressed individual. Recurrence of skin cancer, metastatic disease and even death are not evidence of de facto negligence. The case will be lost by the plaintiff.