One of the myriad factors that experienced Texas medical malpractice attorneys consider when evaluating a case is the applicable standard of care.
What is the standard of care?
Texas law defines a standard of care as what a reasonably prudent doctor or healthcare provider would have done under the same or similar circumstances. Each medical specialty has a set of standards of care that apply to it. Thus, for a particular issue, for example, the standard of care may be what a reasonably neurologist would’ve done under the same or similar circumstances.
Some standards of care, though, are not unique to one medical specialty, but rather are shared by and applicable to multiple disciplines.
Who can testify about the standard of care?
Texas courts should recognize the qualification of any physician expert from any field that has an overlapping standard of care to testify regarding it. For example, this was an issue in a wrongful death medical malpractice lawsuit that I handled.
A middle-aged man was taken to the operating room at an outpatient ambulatory surgery center for shoulder surgery. An orthopedic surgeon conducted the surgery and the evidence showed that there were no issues with his performance.
The problems in the care occurred in the immediate post-surgical period, when the patient became agitated as he was coming out of anesthesia. The surgeon was in the room, as was a certified registered nurse anesthetist (CRNA). Unfortunately, the anesthesiologist was nowhere to be found, having been out of the operating room for 40 minutes tending to one of her multiple other patients.
The CRNA panicked and pulled the endotracheal (breathing) tube out of the patient’s airway and mouth. For the next several minutes, the patient essentially suffocated and died a short time later.
To satisfy the preliminary expert requirements under Texas tort reform laws, we retained and produced an expert report from a board-certified anesthesiologist. This expert addressed the standard of care applicable to anesthesiologists, CRNAs, and orthopedic surgeons in the immediate post-surgical period when a patient begins having life-threatening respiratory complications.
The anesthesiology expert’s written report stated that the standard of care requires these healthcare providers to respond to the respiratory crisis by intubating the patient and providing oxygen and ventilatory support. The report clearly recited that it contains no criticisms of the surgical part of the case, but rather the medical care that shared among different specialties in the immediate post-surgical part of the operating room care.
In the case, the attorney for the orthopedic surgeon filed objections to our expert report, but the trial judge quickly rejected them when we shared the ample case law directly on point allows anesthesiologist to offer such testimony.
The key determination that Texas courts focus on in determining whether a particular physician expert is qualified to offer opinions in a particular case is the expert’s knowledge, training and experience with the direct medical issue in the case.
What if there isn’t a standard of care?
Even in modern medicine, there’s still a relatively small number of areas where there’s not a standard of care. In other words, state-of-the-art treatment doesn’t exist or still is in flux.
I’ve most frequently encountered this conundrum in surgical cases. I recall a matter that I investigated years ago for potential client involving a Kingwood hospital. The patient had been in a horrific car wreck and had broken his back. The emergency physician ordered a radiology scan, but the radiologist botch the interpretation and wrote a report that the patient’s spine and back were intact.
The patient was in excruciating pain but was sent home in a back brace. Days later, he was re-imaged and told that yes, in fact, his back a been broken after all. Ultimately, he faced paralysis from the waist down.
We consulted several orthopedic surgery experts in that case who agreed that there was not a standard of care applicable to orthopedic surgeons in treating the type and location of fracture that this man had experienced. Thus, in their medical opinion, even if the radiologist had correctly interpreted the initial imaging, it would have been appropriate for the surgeon to discharge the patient in a back brace anyway.
There is a similar challenge in the manner in which different physicians and hospitals are treating COVID-19 cases. By definition, this is an unknown or a novel virus. Between March and August 2020, for example, the methods of diagnosis and treatment for the virus have rapidly evolved.
Yet, there’s still not a standard of care to treat COVID-19. Until there is a consensus of what a reasonably prudent physician would do to diagnose and treat COVID-19, then I believe it will be difficult to prove any medical malpractice cases regarding potential poor coronavirus care.
If you’ve been seriously injured because of poor surgical, physician, or hospital care, then contact a top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case.
