If you can’t resist the song of a certain two-tailed Siren every morning, you know that one of Starbucks’ hallmarks is the consistency and predictability of your beverage. Even with extensive available modifications (I can’t quit the cold foam and always request extra ice), you can trust your daily coffee in Chicago will be the same when you’re away on business in Denver. But what about when your cold brew looks a little lighter than it should? Even though you requested a splash of cream – the 1/4 inch standard pour – your barista may have been in a rush and a little heavy handed that morning. But does that deviation from the standard affect the overall quality and experience of your morning joe? While you don’t need an expert to make that determination, you will need one in your med mal case to effectively show the provider adhered to the standard of care.  

In a medical malpractice case, the standard of care is the level of skill a healthcare provider would exercise under the same or similar circumstances. In other words, it is the expected care that a patient would receive from a similarly qualified practitioner. In most (if not all) jurisdictions, the plaintiff’s case depends on expert medical testimony to establish:

1. The proper standard of medical skill and care;
2. That the provider’s conduct departed from that standard; and,
3. That the provider’s conduct proximately cause the alleged harm.

As you well know, a key defense argument in a med mal case is that the healthcare provider’s actions did not deviate from the standard of care. What does this mean? You must have an expert who can clearly communicate to the jury that the medical provider’s actions and decisions concerning the plaintiff’s healthcare were appropriate and within the standard of care.  In other words, a little extra half-and-half wasn’t a problem.

How can we further break down the standard to ensure you select the right expert for your case? Think of it as checking the boxes on the side of your cup:

• Not just reasonable care – In medical malpractice cases, the expert must carefully differentiate and explain to the jury how an “average” physician versus a “reasonable” physician would act, highlighting the doctor’s methodology. Although these terms are sometimes used interchangeably outside the legal context, testimony concerning what an average physician would do can show a jury that medical malpractice does not always cause poor medical outcomes. Instead, risks and complications are present in most medical procedures. Make sure your expert is not only qualified to render an opinion in your case, but also has the skills to meaningfully and effectively communicate it to the jury. Specifically, your expert should be able to articulate their opinion in clear and useful language rather than medical jargon which may be difficult to follow.
• Specific to the profession and circumstances – While most med mal lawyers understand that the standard of care varies based on the specific medical profession and their specialty – as well as the patient’s specific medical condition and circumstances – the jury may not. Ensuring you can clearly demonstrate that your expert is uniquely qualified to testify to the standard of care in your case, and perhaps point out the deficiencies of the plaintiff’s expert, may be crucial to the outcome of your case.
• The geographic location – While experts in non-emergency room med mal actions are not required to have experience in the defendant’s locale, they must be familiar with the reasonable degree of care, knowledge, and skill of medical professional under similar circumstances. As such, while geography could be a factor, it is not the sole consideration in establishing “similar circumstances.” However, be mindful of the optics of bringing in the “big city” doctor if that will not be well-received by a jury in your jurisdiction.

By keeping these tips in mind, you can be confident in your expert’s ability to articulate the standard of care in your case and explain how any purported deviations did not disturb the standard. But first, coffee.