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Medical malpractice and the changing standards of care

Steven E. North, Esq. and Laurence M. Deutsch, Esq.


The traditional requirement for successful prosecution of a medical malpractice case in New York State is that there was a departure from the standards of care in the course, treatment or management of the patient. But what are the standards of care and how are they determined?

Standards of care are determined by what competent physicians do in the regular course of their practices. Ultimately, cases that focus on the standard of care will require testimony from physicians who are experts in the conditions on which a chase is based. But what happens when new tests and methods for managing a medical condition emerge? Is the ordinary practitioner required to be up to date about every new test?

For example, a recent article on WebMed, an online medical forum, notes that there are new tests being developed to detect cancer that are less invasive than those that are currently standard. Colonoscopy, the current standard for diagnosing colon cancer, involves an instrument that has the capacity to perforate the colon. If this occurs, and there exists a less invasive procedure, can the patient successfully maintain a claim against the doctor for failing to use the most recent, less invasive method that carries a lower burden of risk?

We go back to the medical community’s standard of care, which in some cases may include a degree of judgment of the physician. An error in judgment by a doctor in New York is not malpractice if the choice made is an acceptable one to most physicians. For example, one doctor may recommend surgery while another does not, but this does not mean that one of those physicians is necessarily engaging in malpractice. On the other hand, if the standard of care requires that a procedure or test be undertaken, then failure to follow that course would be an appropriate foundation for a medical malpractice claim.

What about a physician’s failure to use a modern test that may detect cancer at an early stage? Recent discoveries show that cancer can be detected in certain biomarkers like DNA and in certain proteins. Will a failure to use all the available cancer testing modalities lend itself to a claim of malpractice? Again, the question is, “What are the doctors and community actually doing?” and the answer will usually determine what the standard of care is.

It may very well be that the standard of care is less than we would like. That is, it is not the method that could produce the most favorable outcome. Yet, if physicians as a community are not yet fully up to date on the very latest methodologies and technologies, then one individual cannot be held accountable for failing to follow that course. However, the law does require physicians to be current with generally accepted practice. Therefore, it would not be a “defense” in 2017 to decline to give an EKG test to a patient with chest pain just because some doctor, somewhere, was found who doesn’t give the test.

WebMed, March 28, 2017