Every time I consider a potential new medical negligence case, or think about a case I am currently handling, it is in the context of how I think community members – jurors – will think about the care in question. The reason is, if I file a lawsuit on behalf of a client of mine, the end result will likely be a trial in front of 12 men and women in the county where care occurred.

The first question a jury will likely decide in such a case is whether the health care provider in question met, or fell below, the “standard of care.” This “standard of care”, in essence, is the health care provider’s duty to his or her patient to act reasonably carefully in caring for the patient. If the doctor met the standard of care, she is not negligent. If she fell below the standard of care, she is.

So how does a jury know what the “standard of care” is in a given situation?

Sometimes, it’s obvious. Sometimes the care is bad enough, and both sides know it. In those situations, the cases typically settle out of court.

Often times, though, there is not a particular authoritative text you can point to and say that a doctor or other healthcare provider clearly broke a particular rule.

In those situations, each side hires experts – physicians who practice in similar circumstances as the doctor who provided the care in question – who testify in court about what the “standard of care” is, and whether or not it was met this time. The jury listens to the experts, then deliberates and decides whether they agree with the experts for the patient or for the doctor.

This is an important point. To even get in front of a jury, the patient must offer sufficient expert testimony that the defendant doctor was negligent. However, once that threshold is met, the jury gets to listen to the testimony, and they get to make their own decision. That decision should not be made based on sympathy or bias, but it necessarily must be made on what the jury believes was the “standard of care” in the situation before them, and therefore what it should be in the community going forward.

You see, in Washington, the doctors don’t decide what the “standard of care” is, nor is the standard based on what care is expected by other doctors. It is decided based on what is expected by society – us, the community, and the representatives of it who sit on the jury.