Unfortunately jury as opposed to bench trials do not always follow the
facts. The one element required to support a case of negligent
treatment in the US that Dr Roscoe has not discussed is that the act
must violate the "community standard of care." Courts in the US have
broadened the meaning of community in some cases to mean the whole
country. The problem is that the "standard of care" lacking published
and accepted guidelines are whatever an expert testifies they are.
Thus, if the literature provides compelling evidence that treatment
should be what the doctor did but the expert can sound convincing to a
jury that the standard is something else, the defendant will loose.
I have a colleague who lost a half a million dollar judgment when his
care was completely consistent with the literature. This is despite a
"high powered" expert (with M.D., D.C. and Ph.D. degrees) testifying
that his actions did not violate standard of care. However, the jury
bought the testimony of the plaintiff's expert that the care was
substandard.
Trefor Roscoe wrote:
>
> Surely it should be the other way round. If you are not doing what the
> evidence says you should, you are not doing what is best for your patients.
>
> In order to prove negligence the patient has to show that there was a duty
> of care (ie you were their docotr and they were your patient), and that
> there was an act of ommision or commision, and that this led to harm coming
> to the patient. They also have to show that the harm was a direct result and
> that the outcome would have been better if the act of ommision or commision
> had not occured (if you see what I mean).
>
> If they can show that your everyday practice was not of the current
> standard, and that they have been harmed as a result, then an act of
> ommision (not doing the best) has occured. If they are thus harmed, you can
> be sued. If you do something that is in their best interests, they have to
> show harm and the connection with the doctor and the act.
>
> They may sue you for not giving a treatment that other doctors give which
> you have seen evidence should not be given as it is of no use. If they get
> worse they may think that as you have not given such a treatment they have
> been harmed by you . But they cannot show harm has come to them as a result
> of non-treatment by not giving it if there is evidence to back you up.
>
> Trefor
>
> Dr Trefor Roscoe
> Lecturer Sheffield University Medical School
> Webmaster Medical-Legal.co.uk
--
_____________________________________________________________________
Stephen M. Perle, D.C. "A man who knows that
Assistant Professor of Clinical Sciences he is a fool is not
University of Bridgeport College of Chiropractic a great fool."
Bridgeport, CT 06601 Chuang Tzu
E-mail: [log in to unmask]
http://www.bridgeport.edu/chiro/
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