In every medical malpractice case the burden is on the claimant to prove that the defendant health care provider acted below the standard of care. A pattern jury instruction used in Washington state reads in part as follows:
“A health care provider has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent health care provider in the State of Washington acting in the same or similar circumstances at the time of the care or treatment in question. Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and is negligence.”
So the law provides a definition of standard of care: it is what a reasonably prudent health care provider would do. But how does one establish what the hypothetical reasonably prudent provider would do? Often, doctors and others assume this means what other physicians do, as in “I know many doctors who would do the same thing.” Therefore, the reasoning goes, what those doctors do must be the standard of care.
But the jury instruction just noted also states that “the degree of care actually practiced by members of the medical profession is evidence of what is reasonably prudent.” It goes on to say: “However, this evidence alone is not conclusive on the issue and should be considered by you along with any other evidence bearing on the question.”
A well-known case in Washington is *Harris v. Groth*, a decision issued by the Washington Supreme Court in 1983. That case held that a jury can find a violation of the standard of care by an eye doctor who fails to do a simple pressure test for glaucoma, even though most eye doctors did not routinely do that.
How, then, does one prove at trial that the standard of care was violated? In all cases in which this is at issue, only an expert who is knowledgeable about the medical specialty or procedure can testify about what a “reasonably prudent” provider should do in the circumstances of the care provided. That is why so many medical malpractice cases become what is called a “battle of the experts.”
The jury may hear directly conflicting testimony from experts on both sides about what is “reasonable” and “prudent” care. Who wins in that case? In many cases it’s a matter of how the jury perceives the expert and his qualifications. Many attorneys will tell you that personality is as important as credentials. If a jury likes the expert and believes that he is sincerely trying to help them understand the medical issues, they will respond more favorably than they would to a super qualified expert who is arrogant or who they think is talking down to them. The expert who can break down complex medical issues into basic, logical steps in the medical care is also more likely to be believed than someone who slips into medical jargon or technical discussions.
