In summary, the concept of standard care has evolved over the years and will continue to change as legal theory develops in this area. Hopefully, this will lead to greater certainty and clarity, which is the stated purpose of any law. The bad news is that there are several important cases where it is suggested that even if a practice is not standard, if it is reasonable, a physician can be found guilty of not following that course of action. The good news for physicians is that in recent cases, the courts have often confirmed that the standard of care is what a physician with little competence in the same field would do in the same situation with the same resources. These recent cases also indicate that poor outcomes are to be expected and that not all entities can be expected to be diagnosed. Finally, clinical practice guidelines are more commonly used in court proceedings to support the standard of care. however, their acceptance and use are constantly changing, deciding on a case-by-case basis (Table 2). Two cases changed the legal definition of the standard of treatment as it is applied today in medical malpractice law. The first case had nothing to do with drugs, but with a smuggler.
The T.J. Hooper case in 1932 helped change the way the legal profession viewed customs and the standard of care. In this case, the owner of the tug T.J. Hooper was sued for the value of two barges. The tug had encountered a storm and the two barges it was carrying had sunk. The owners of the barges claimed that the T.J. Hooper was unsafe for sea service because he did not have a radio receiver to check for important storm warnings. In addition, they claimed that it was “common” for smugglers to have this radio receiver. They claimed that if the T.J. Hooper had had a walkie-talkie, they could have been warned of the storm and avoided it. In reviewing the case during the appeal, Justice Learned Hand ruled in favour of the barge owners; However, he did not do it out of habit.
He pointed out that it was indeed not usual for smugglers to be equipped with the recipients, but that, since the practice was reasonable, the owners of the T.J. Hooper could be held liable for damages. He explained: “In most cases, reasonable prudence is indeed common prudence; but, strictly speaking, it is never its measure; An entire call can be excessively delayed when introducing new and available devices. He can never put his own tests, no matter how convincing his use may be. At the end of the day, the courts have to say what is required; There are precautions so essential that even their general contempt will not excuse their omission. 6 In other words, if there is a practice that is reasonable but not commonly used, it can still be used as a measure of the standard of care. The practice of medicine becomes harder to define when you look at medical advice. However, there are some guidelines that can help define when “medical advice” is “the practice of medicine.” In general, counselling as a practice of medicine has several of the following characteristics: Emergency physicians should be aware of these landmark cases that set the standard of care. In addition, physicians should be aware of the content of the various clinical practice guidelines so that they can practice within them or document the reasons for deviations from them. Each state will also have statues that define wrongdoing in very specific terms. Physicians should review relevant laws based on the state in which they practice.
By practicing with these concepts in mind, an emergency physician can feel more confident in daily practice and in cases of malpractice. With this basic knowledge, the doctor facing a trial can help his legal team optimize his defense. In a popular sense and understood as usual, the practice of medicine is the use of medical or surgical agencies for the purpose of preventing, mitigating or curing diseases or supporting natural functions or modifying or eliminating the consequences of physical injury. Stewart v. Raab, 55 minn. 20, 56 n. w. rep. 256.
But in some relationships and for certain purposes, the term has a broader meaning. This is sometimes reflected in legislation, sometimes in court decisions on questions of interpretation of the term, and sometimes in both. Medical actions often indicate what is to be considered among them as the practice of medicine. But even if this is the case, the courts are often called upon to interpret the words of the legislature and to determine whether or not certain acts of a party make him a doctor within the meaning of the applicable law. If the medical law does not contain a direct provision relating to the matter, in the event of a dispute, the court must determine what constitutes the practice of medicine, taking into account the general scope and purpose of the legislation. Medical laws were published primarily to protect the public, although the medical profession is protected by these laws. Difficult cases are not those in which a person tries to cure diseases with the use of ordinary drugs or equipment, but those in which new or extraordinary methods are used. Some of the ways in which this issue has been raised are listed in the following sections.
Because states are responsible for providing medical licenses, each state has a slightly different legal definition of the practice of medicine. Generally, a person practices medicine when they are trying to diagnose or cure a disease or injury, prescribe medication, perform surgery, or pretend to be a doctor. For more information, see FindLaw`s sections on medical malpractice and health law. A final case that helped define the modern definition of the standard of care is Johnston v. St. Francis Medical Center from 2001.13 In this case, a 79-year-old man who suffered from abdominal discomfort was examined with X-rays and laboratories, but his investigation was unclear. Two doctors examined him during the day and found that he was in mild distress. Additional studies, including computed tomography and ultrasound, were ordered, but the patient became hypotensive and was referred to the intensive care unit (ICU).
The ICU doctor thought he might have an aortic aneurysm, which was confirmed during the laparotomy. The patient died in the operating room. The plaintiffs argued that doctors should have diagnosed the aneurysm earlier. All but one of the experts said it was a difficult diagnosis.