Establishing Standards of Care without Experts

A physician, nurse, hospital, or other healthcare organization must provide its patients with the appropriate standard of care under the circumstances. In a medical malpractice action, an injured party must establish the standard of care and also must show evidence that the healthcare provider breached that standard. Generally, the standard of care is defined as how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances. In determining the appropriate standard of care, juries may take into consideration a respected minority rule, which allows a healthcare provider to show that although the course of treatment followed was not the same as the majority of practitioners would have used, it is one that is accepted by a respectable minority of practitioners.

In most medical malpractice cases, this standard of care is established by the testimony of expert witnesses. However, there are situations when the injured plaintiff may be able to prove the standard of care without the use of experts.

Res Ipsa Loquitur

The Latin phrase "res ipsa loquitur" means "the thing speaks for itself," and it is used in the law in situations where the actual negligent act cannot be proven, but it is clear that the injury was caused by negligence. The application of this theory in medical malpractice cases is limited to circumstances where all three of the following are present: the patient sustains an injury that is not an expected complication of medical care; that type of injury does not usually occur without negligence; and the defendant was responsible for the patient's care at the time of the injury.

The proof of a res ipsa loquitur claim does not require the use of an expert witness. However, many states have limited the application of this theory to specific types of medical malpractice claims, such as where a surgeon leaves a foreign body in a patient's body.

Negligence Per Se

In negligence per se cases, the defendant has violated a law, and it is the law, not an expert witness, that establishes the standard of care. In order to successfully use a negligence per se theory, a plaintiff must show that a law was violated, that the law was intended to prevent the type of injury that occurred, and that the plaintiff was in the class of persons intended to be protected by that law.

Negligence per se claims may be made against physicians or hospitals that violate laws intended to protect patients, such as federal anti-dumping laws and state laws requiring the provision of emergency medical care. They may also be made against physicians who do not obey disease control regulations or who fail to report danger individuals. On the other hand, a patient who has been injured by a physician who is practicing without a license does not have a negligence per se claim against that physician because the medical licensing laws are not intended to protect specific patients from medical malpractice.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.