Causes of EHR-related Pediatric Malpractice Claims

The days of squinting while trying to read the physician’s prescription are long gone along with the bulky files which stored all our medical records.  The electronic health record (EHR) has replaced the pen and paper documents, resulting in better legibility and documentation of our medical records.  A powerful tool that is helping physicians achieve better care, lower costs per capita and better population health.  But, like all good things, the EHR is also prone to causing errors – errors that can be a source of medical liability.  Let us look at some of the factors that can be the cause for EHR related malpractice claims at a pediatric setting.


Interoperability Issues

Office based pediatricians use of EHR rose from 58% in 2009 to 79% in 2012.  However, interoperability issues caused due to multiple EHR systems and platforms coupled with limited pediatric functionality still prevail.

There is a need for pediatricians to realize that due to these interoperability issues, they do not have access to complete data on hospital admissions, emergency department visits, lab results, subspecialist reports and care provided outside the medical facility.  Serious errors in medical management could result due to these fragmented EHRs, resulting in harm to patients and exposing pediatricians to professional liability through malpractice claims.

Electronic Prescribing

While nearly 50% of pediatric practices are transmitting prescriptions directly to the pharmacies through the electronic prescription programs, the lack of pediatric functionalities in many EHRs can pose significant safety risks to children.  There is a need to verify if the EHR uses pediatric-specific drugs, calculates the correct pediatric dosages, and alerts the provider of dosing errors and potential contraindications.  Another problem area is that the majority of e-prescribing programs do not keep information from providers using a different e-prescription program. This can lead to serious consequences for both the patient and the pediatrician.


While copying and pasting information from previous medical records does reduce time and effort to duplicate records – it can also cause tragic results.  Also known as cloning, duplication more often than not, results in over-documentation of the actual findings – for example, when the document cites items that have changed or were not examined in subsequent visits.  This can lead to damaging the credibility of the record in a liability action for the pediatrician.  For the patient, incorrect information from a past visit can lead to incorrect care.

Validating Reports

It is important that electronic reports from labs and consultation are examined by a provider before being incorporated in the EHR.  Incorrect reports or posting the wrong one can lead t serious medical errors and pose a significant malpractice risk.

Transition, Retention, Contracts

While it is good to move with the times, care should be taken when transitioning from paper to electronic charts. Before getting rid of the old paper records, pediatricians need to be sure that they have complied with all federal and state record retention laws.

Before finalizing the provider, all EHR vendor and service contracts should be scrutinized and legal review secured.  Pediatricians need to be aware of where protected health information is stored and the relevant risk of loss of this data.

Coding Issues

Some EHRs may be prone to coding pediatric services at a higher level than warranted due to a feature that automatically calculates CPT codes based on the services documented in the EHR.  Incorrect coding can lead to receiving overpayments, which may lead to liabilities due to fraud and system abuse.

The majority of pediatricians using EHR find the advantages outweigh the disadvantages.  Although, adverse EHR events are rare, they do exist. Becoming aware of and preventing potential and real risks of EHR errors is the best policy.


  1. Anunta Virapongse, M. M., David W. Bates, M. M., & Ping Shi, M. (2008, November 24). Electronic Health Records and Malpractice Claims in Office Practice. Retrieved from The JAMA Network:
  2. Graber ML, S. D. (2015, November 6). Electronic health record–related events in medical malpractice claims. Retrieved from PSNet: Patient Safety Network:
  3. Richard L. Oken, M. F. (2016, August 8). Lessons learned from EHR-related medical malpractice cases. Retrieved from American Academy of Pediatrics:
  4. Spooner, S. A. (2007, March). Special Requirements of Electronic Health Record Systems in Pediatrics. Retrieved from American Academy of Pediatrics:

Statistics on Orthopedic Malpractice Cases

Medical malpractice is a poorly understood and complex phenomenon.  Which patients file claims, why these claims are filed, and under what conditions remain vexing questions.  In 2014, malpractice lawsuits were filed against 18% of orthopedic surgeons by patients and their families.  According to a 2011 study, orthopedics is the fourth most sued specialty, after neurosurgery, cardiothoracic surgery, and general surgery.  There are several aspects of orthopedic malpractice claims that intuitively appear to contribute to malpractice losses.  Among these factors are the nature and quality of the physician/patient relationship, the amount of time physicians spend communicating with patients, and the presence, or at least the appearance, of physician empathy and compassion.

The Doctors Company recently released a closed claims study examining medical malpractice claims against orthopedists.  Covering 1,895 claims against orthopedists that closed between 2007 and 2014, including all claims and lawsuits in which an orthopedist was named a defendant; the study included all cases regardless of the outcome in order to get a broader sense of what motivates a patient to pursue a claim and to gain a better understanding of what led to patient harm and the respective system failures.

According to David B. Troxel, MD, medical director of The Doctors Company in Napa, California, the nation’s largest insurer of physician and surgeon medical liability, “if you practice orthopedic surgery long enough, the odds are good that someone will hit you with some sort of lawsuit.”  The good news is that the rate of lawsuits has been declining across all specialties since 2008, added Dr Troxel. However, according to him, far more liability suits could be prevented if orthopedists took the time to maintain good relationships with their patients.

The study analyzed claims against more than 2100 orthopedists, pinpointed the most common types of claims and, based on these findings, developed recommendations for avoiding them.

Given below are some of the important statistics from the study.

  1. 46% of claims came from patients stating their surgery was performed improperly, making this the largest reason for filing claims.  While the allegation was most often made when the outcome of the procedure differed from the patient’s perspective, the findings of expert reviewers showed only a small percentage of injuries were due to substandard care.
  2. The procedures that brought the maximum and most frequent allegations of improper care were total knee replacement, total hip replacement, knee arthroscopy, vertebroplasty, open reduction internal fixation, discectomy, exploration and decompression of spinal canal, shoulder arthroscopy and rotator cuff repair.
  3. 16% of all claims stemmed from improper management of surgical patients, with patients claiming improper management if they experienced infections, continued pain or mechanical complications of orthopedic devices or mal-union or nonunion of bones.
  4. 13% of claims were due to delayed, failed or wrong diagnosis with compartment syndrome, fractures, nonunion of fracture, hematomas, postoperative infections, malignant bone tumors, thromboembolism and dislocations accounting for the most incorrectly diagnosed procedures.

The study also identified several factors that contributed to patient injury.

  1. 35% of all patient injury was due to technical performance, although that does not necessarily imply negligence.  While most claims were related to known risks, a “small” portion was due to substandard care.
  2. 29% of patient injuries stemmed from patient behavior wherein patients dissatisfied with the care provided sought other providers thus reducing the original physician’s opportunity to address concerns or the unsatisfactory surgical outcomes through follow-up care.



  1. Harrison, L. (2015, October 7). How Orthopedists Can Get off the List of Most-Sued Doctors. Retrieved from Medscape:
  2. Oliver, E. (2016, August 11). 10 thoughts and statistics on medical malpractice claims against orthopedists. Retrieved from Becker’s Healthcare:
  3. Peckham, C., & Grisham, S. (2016, January 22). Medscape Malpractice Report 2015: Why Orthopedists Get Sued. Retrieved from Medscape:
  4. Sonny Bal, M. M., & Lawrence H. Brenner, J. (2008, April). Surgeon characteristics and medical malpractice: Are orthopedists at risk? Retrieved from Healio Orthopedics Today:

Medscape EM Physician Compensation Report 2016

The Medscape compensation survey 2016 witnessed the responses of emergency medicine (EM) physicians with regards to their compensation, hours of work on a weekly basis, the time spent with each patient, the ways in which healthcare reforms affected their practice, the rewarding parts about their jobs, etc.

For patient-care compensation for employed physicians, which includes profit-sharing contributions, bonus and salary, there exists a wide range of earnings in various specialties.  While orthopedists and cardiologists (including surgical sub-specialists) topped the list with an annual compensation of $443,000 and $410,000 respectively in 2016 (higher than $421,000 and $376,000 as per last year’s compensation report), EM Medscape EM Physician Compensation Report 2016_1_Expert Witness_Indiana_Dr. Patelphysicians were somewhere in the mid range with compensations of $322,000 on a yearly basis.  A 5% increase in income was in the offing for EM physicians – with the highest earnings being reported in the Southwest ($355,000), Southeast ($360,000) and South Central region ($371,000) – while internists experienced a whopping 12% increase.  However, practitioners of pulmonology and allergy/immunology experienced a decrease in their income (-5% and -11% respectively).

EM physicians in and healthcare organizations ($327,000) and hospitals($329,000) enjoyed the highest income.  Overall, male EM physicians notched $332,000 while their female peers made $279,000 this year ($53,000 less) for full-time positions.  The earnings for self-employed EM physicians (female) were $317,000, which was 85% of that of men ($371,000).  It’s notable that being self-employed or employed had no role to play in this gender disparity with relation to salary.

60% of EM physicians are satisfied with their earnings and feel fairly compensated.  Since Medscape EM Physician Compensation Report 2016_2_Expert Witness_Indiana_Dr. Patel
2012, the other physicians who felt duly compensated are dermatologists (66%), pathologists (63%) urologists (42%), and allergists/endocrinologists (both 43%).  This year’s report showed that the physicians who earned more believed that they were fairly paid, rather than those who did not match up with them.  Over 52% of employed EM physicians (male) and 63% of their female counterparts believed that they are compensated fairly, as compared to 24% and 17% of self-employed EM physicians (male and female respectively).

In the 2016 Medscape report, EM physicians (66%) preferred to choose medicine, but a lesser number (44%) wanted to select their own specialty; these figures were close to the survey results of 2011.  Concierge and cash-only practices failed to serve as significant payment models despite a lot of attention being given to these fields.

Over 55% EM physicians have been positively impacted by the Affordable Care Act (ACA) that has paved the way for a large influx of patients.  A year after the implementation of this Act, the physicians who believed that the quality of care provided had worsened, 18% reported no increase in patient load while 21% had higher loads.  As far as the physicians whose patient load had increased are concerned, 78% felt that the quality was the same or improved; with 82% of physicians who experienced no increase showcasing the same experiences.

In the current Medscape report, 11% EM physicians said that it was inappropriate to drop insurers that paid poorly, while the question did not apply to the remaining ones.  As per the report conducted in 2014, more than 58% of physicians had received $100 or less for new-patient office visits by their private insurers.

The report also stated that 67% of EM physicians spent 30-45 hours on a weekly basis seeing patients with only 19% spending more than that. It was also observed that middle-aged physicians worked harder than their older and younger peers.  According to the results of the current year’s Medscape Lifestyle Report, spending many hours at work and bureaucratic tasks happened to be the primary causes of burnout in physicians.

It’s unclear how the income of physicians is affected by ACA as many variables have a role to play in the ultimate results.  When asked about how their income was affected, 72% of EM physicians who participated in last year’s health insurance exchanges reported no changes while 7% acknowledged that it had increased; and 21% experienced a decrease.


  1. Peckham, C. (2016, April 1). Medscape Physician Compensation Report 2016. Retrieved September 2, 2016, from MedScape:


Cardiac Care ICUs Increase Risk Of Death

Martha sat alone on the porch, wondering about the way her life had changed.  Just a month back, everything was normal and happy.  Bill, her husband had just returned home after visiting their daughter at college and they were making plans of going there for her graduation ceremony next year. And then, without any warning, Bill just collapsed.  Luckily for them, the hospital was just a short distance away and Bill was admitted to the ICU, having suffered a heart attack.  After a two week stay, Bill was discharged and came back home.  Last evening, Bill complained of feeling short of breath and before they could reach the hospital, Bill had become unconscious in the car. Immediately admitted to the ICU again, the physician informed Martha that Bill had suffered another heart attack.  This morning, their family physician, consulted with the doctors at the hospital and had Bill moved out of the ICU.  On being questioned about the move by Martha, the doctor explained his reasons, showing her the article in CHEST.

According to a study published in the , patients who suffer heart failure or heart attacks, fare worse in hospitals that rely on their intensive care units to treat them.  While patients who suffer heart attacks or heart failure can be treated in a variety of hospital locations, those treated in the ICU are likely to receive less than half of certain proven tests and treatments.  They are also less likely to survive more than a month after discharge.

The Study

Thomas Valley, M.D., M.Sc., and his colleagues at the University of Michigan Medical School, examined Medicare records of over 570,000 hospital stays that occurred in 2010, to glean the findings that made up the report.  Admission and treatment in the ICU accounted for more than 46% of the 150,000 hospitalizations at over 1,700 hospitals for acute myocardial infarction or heart attacks.  Out of the 400,000 heart failure patients admitted to one of the 2,199 hospitals, 16% were admitted and treated in the ICU.

The researchers used the Hospital Compare website, through which the federal government publicly reports hospital performance; to determine how efficient hospitals were at providing high-quality healthcare.  They also used the website to find out the percentage of patients who either passed away or were re-admitted within a month of their discharge from the hospital.  Based on the data gathered, they divided the hospitals into five groups – depending on their frequency of use of ICU beds.

Although the quality of care across the all the hospitals seemed to be good, the research findings threw up some notable disparities that lead to suboptimal care.  For example, the study shows that those hospitals which had high rates of ICU admissions and treatments were less likely to provide aspirin and other drugs to heart attack patients upon arrival at the hospital – this despite the known improved outcomes that these drugs offered. Similarly, patients suffering from heart failure were less likely to be administered key tests or receive important medications.  There was also the absence of counseling on the benefits of abstaining from smoking.

However, the biggest finding was the disparity in the 30 day mortality post discharge, Cardiac_Failure_expert_witness_indiana_dr-patel
between the low and high ICU usage facilities.  According to the findings, the risk of death within 30 days of discharge for heart failure patients stood at 8%, while for heart attack patients, it was 6%.

These findings only add to the growing evidence about the varied use of ICU beds.  The findings show, for the first time in heart care, that hospitals with high ICU admissions and treatments are the worst performers in terms of health care quality.  According to Thomas Valley, “In this country, we still have an open question of what to use the ICU for, and when, and very little evidence to guide physicians.  Is it for those who were already sick and got worse, or is it a place to send people proactively when we think they might get sicker? And the answer can vary on different days, or based on how many beds are available right then.  We hope to build a body of evidence about how to use this valuable resource in the most effective way.”

Going Forward

The researchers plan to continue their study from data collected from large groups of patients – to help understand which group benefits the most from ICU care and treatment along with finding out the best characteristics of ICU care that can be tried on general hospital floors.  It is possible that specially trained healthcare professionals might be able to administer the same care as in the ICU, thus providing the physician an option of whether to admit the patient in the ICU or not.

Thomas Valley points out that those patients hospitalized for heart failure or heart attack and their families need to be vocal about the patient’s wishes regarding the intensity of care that they want to receive.  According to Valley, “It’s important to understand why you or your loved one are being admitted to the ICU, and talk about whether it’s in line with your or their wishes. It’s important to understand both the benefits and risks of an ICU stay.”


  1. Hospitals that send the most heart patients to the ICU get the worst results, U-M study finds. (2016, August 03). Retrieved August 09, 2016, from
  2. Thomas S. Valley, M. M., Michael W. Sjoding, M. M., Zachary D. Goldberger, M. M., & Colin R. Cooke, M. M. (2016). Intensive care use and quality of care for patients with myocardial infarction and heart failure. CHEST Journal .
  3. Zimmerman, B. (2016, August 04). Heart patients fare worse in hospitals that rely on ICUs for cardiac care. Retrieved August 09, 2016, from

Time Management Tips for Physicians

The world is a busy place and is going to keep getting busier.  Everybody seems to be running against the clock and physicians are no different.  Already swamped, physicians find themselves even busier with the addition of approximately 22.4 million new patients – courtesy the Affordable Care Act.  Treating patients, administrative work, departmental and team meetings, conferences, keeping up with the latest developments in healthcare – all these coupled with taking out time for the family and other social commitments, is definitely taking its toll on our healthcare professionals.  The result – stress builds up, energy levels drop and very often, mistakes occur.  While this is true for nearly all professionals in most fields, the problem with healthcare professionals is that their mistakes can often end up being life threatening.

The reason why most people end up in such stressful situations is because they are not trained to manage their time.  Professional courses (other than corporate management training programs) very rarely offer any training on time management.  The result – most people end up juggling multiple activities with knowing how to streamline and manage them.  Given below are some well tested time management tips that should help you – the healthcare professional to balance your time between the various activities throughout your day.

Prioritize your activities

One of the primary tasks in time management is to prioritize your activities of the day.  Make a list of all that you need to do on that day and the time required for each one of them.  Keep checking that list to see if you are falling behind schedule.  However, remember that the list is not sacrosanct – adjust the activity and time if required.  You will find yourself completing more tasks this way.

Evaluate yourself

To effectively manage your time, you need to know what type of a person you are.  Conduct a SWOT analysis to understand your strengths and weaknesses, the opportunities and threats that you face.  Are you energetic in the mornings or the evening?  Do you dash headlong into activities or are you prone to procrastination?  Understanding yourself and then allocating time to your activity based on your strengths will help you manage them better.

Use technology to the fullest

Technology is a two way sword – while the internet has made it faster to send and receive messages; it is also the reason for a larger number of not so important messages interrupting you throughout the day.  Use technology judiciously.  There are software’s available that allow you to streamline your healthcare practice and reduce paperwork.  Use mobile applications that allow your patients to review their medical records, book appointments and even get prescriptions without having to visit your facility, save time for both you and the patient.

Optimize your EHR

As in the tip on technology – your EHR can be productive or a time consuming part of technology.  This depends totally on how user-friendly your system is, how functional it is for your practice and how well your staff and physicians are trained to work with it.  Although it requires time and effort to optimize your system, it pays huge dividends in the long run saving your time and energy by cutting down on paperwork and allowing access to information on your fingertips.

Learn to delegate

You may be a ‘hands on person’, but remember you just have two hands.  There is no shame or loss of control in delegating some part of your work to others around you.  After all, your administration staff, medical assistants, interns and volunteers are there for this purpose – to take on responsibilities and work and leave you with time to manage your patient’s well being.

You are allowed to say ‘No’

People look up to you and ask for your help frequently – be realistic about your workload.  Can you accommodate the request without compromising on your priorities? If yes, then go ahead but if the answer is no, then do yourself and the other person a favor by saying no.  Saying yes when you should be saying no will only increase your stress levels, exhaust you mentally and physically and decrease your productivity – none of which will benefit either of you.  Attending every conference, speaking at seminars is definitely good for your career – but only if you can continue your career without suffering a burnout from over-exhausting yourself.

Learn to relax

The brain rejuvenates itself when you relax – it could be a power nap, listening to music, taking a walk or just sitting with your eyes closed.  A rejuvenated brain works faster and better, allowing you work more efficiently and thus save on the time taken.  Schedule small relaxing breaks into your day and follow them as rigorously as you would follow your other activities.


  1. Casey, J. (2016). 6 Tips for Better Time Management. Retrieved May 28, 2016, from
  2. Kersley, S. E. (2016). Time Management – The five mistakes doctors make. Retrieved May 28, 2016, from
  3. Reese, S. (2016, April 27). 12 Smart Time Management Tips for Doctors. Retrieved May 28, 2016, from
  4. Taylor, J. (2013, October 15). 6 TIME MANAGEMENT TIPS FOR HEALTHCARE PROFESSIONALS. Retrieved May 28, 2016, from

Common Medical Mistakes That Cause Litigation

Mistakes are made by all humans.  However, some mistakes prove costlier than others – in terms of either physical or mental damages to the receiver and financially to the maker.  Mistakes made by healthcare professionals fall under this category and result in medical malpractice cases against the professional concerned.  Medical malpractice is said to occur when the healthcare provider has been negligent and the care provided is not up to the accepted standard.  Within the ambit of errors that lead to these malpractice suits, there are certain types of errors that seem to crop up more often than others.  Given below are some of the more common medical errors that may result in malpractice suits.

Delayed or Misdiagnosis

A delayed diagnosis will result in precious time wasted – time during which the patient could have started getting treatment.  This can lead to severe complications or even death, depending on the severity of the problem.  Similarly, misdiagnDelayed_or_Misdignosis_Expert Witness_Indiana_Dr. Patelosis can not only cause delay to the correct treatment for the problem, it can complicate the issue further due to the wrong treatment of the problem.  It is of paramount importance that healthcare professionals ask for further tests or consult other professionals if there is any doubt about the cause of the illness.  Referring the patient for a second opinion is far better than making a mistake in the diagnosis.

Medication Errors

Medication errors are probably the most common of medical errors, resulting in over a million patients suffering from this every year. Medication_Errors_Expert Witness_Indiana_Dr. Patel Medication errors can occur due to a number of causes – bad handwriting, wrong medication due to misdiagnosis, wrong dosage either by the doctor or the administrator of the medicine (if administered by a healthcare professional), malfunction of the equipment used to administer the medication, drugs that have passed their expiry date, the wrong drug administered in a hospital and many other.  It is important to double check the patient’s previous history, their reaction to drugs that might trigger allergies and explain the dosage and method of administering the drug to the patient.

Errors related to Anesthesia

Errors related to anesthesia can be more dangerous for the patient than even surgical errors.  Mistakes made while administering anesthesia can not only cause injuries of a permanent nature like damage to the brain, but can also result in the death of the patient.Errors_related_To_Anesthesia_Expert Witness_Indiana_Dr. Patel  Errors made by an anesthetist can be due to administering the wrong dosage of anesthesia, failure to monitor the patient’s vital signs while the patient is under the influence of the drug, intubating the patient incorrectly or the use of faulty or defective equipment.  Errors also occur if the anesthetist does not investigate the patient’s medical history which may point to complications that may arise with administering anesthesia and also if the patient is not informed of the precautions to be taken both pre and post the administration of anesthesia.

Surgery Errors

Most surgery errors stem from negligence by the healthcare professional/s.  Complications arising during surgery may or may not be solved – and does not constitute a medical error.Surgery_Errors_Expert Witness_Indiana_Dr. Patel  However, operating on the wrong body part, puncturing other internal organs, leaving behind surgical instruments inside the patient, etc., all constitute medical errors and will lead to a malpractice suit.  Negligence during post-operative care also constitutes medical error.  It is important for healthcare professionals involved with surgery to be alert and focused during the procedure and in the care that follows.

Errors relating to Childbirth

Errors relating to childbirth can take place during the tenure of the pregnancy or during childbirth itself.  Negligence, lack of proper care, incorrect medication, misdiagnosis of the mother’s condition is some of the causes for errors in prenatal care. Errors_Relating_to_Childbirth_Expert Witness_Indiana_Dr. Patel Negligence during childbirth can be due to the wrong use of forceps or vacuum extractor,complications arising due to failure to respond to distress signs made by the fetus, not ordering a cesarean when required or even failure to anticipate complications when previous tests indicate that there could be some.

While it is true that no healthcare professional would knowingly harm a patient, it is expected that they would also not allow errors to take place.  There could be multiple reasons why a healthcare professional failed to restrict an error, but that does not generally hold any value in a malpractice suit.  After all, the patient goes to the healthcare professional because they are knowledgeable experts in treating illness and providing healthcare.


  1. 12 Most Common Medical Errors (And How to Prevent Them). (2016). Retrieved May 20, 2016, from
  2. Common Errors by Doctors and Hospitals. (2016). Retrieved May 20, 2016, from
  3. Michon, K. (2016). Medical Malpractice: Common Errors by Doctors and Hospitals. Retrieved May 20, 2016, from
  4. Miller, A. M. (2015, March 30). 5 Common Preventable Medical Errors. Retrieved May 20, 216, from

Medical Expert Witness and Proving Malpractice

Medical malpractice law is based on concepts drawn from tort and contract law – commonly understood as liabilities arising from the delivery of medical care.  Malpractice suits are generally based on negligence, breach of contract (a treatment guaranteeing a certain result), intentional misconduct, divulgence of confidential information, defamation, insufficient informed consent, or the failure to prevent foreseeable injuries to third parties.  Out of these, the most common cause of medical malpractice suits is negligence.

Medical negligence, according to Black’s Law Dictionary, requires the plaintiff to establish the following:

  • the existence of the physician’s duty to the plaintiff, usually based on the existence of the physician-patient relationship;
  • the applicable standard of care and its violation;
  • the damages (a compensable injury);
  • the connection between the violation of the standard of care and the harm complained of.

Medical expert witness testimony is used by both the plaintiff and defendant in medical malpractice suits.  The expert witness testimony plays an important role in determining if malpractice occurred or not and by and large, the courts rely on this testimony to establish the standards of care germane to a malpractice suit.  In a nutshell, the expert witness testimony describes the standards of care relevant to the given occurrence, identifies any shortcomings to this standard and states whether the shortcomings are the most likely reason for the injury.  Without the medical expert witness testimony, juries who do not possess the same technical expertise would be at a loss to distinguish malpractice from mal-occurrence.  How exactly does an expert witness prove that malpractice has occurred?

Establishing the Standard of Care

According to the law of negligence, standard of care is “that degree of care which a reasonably prudent person should exercise in same or similar circumstances.”  In the case of medical malpractice this is understood to be, “that reasonable and ordinary care, skill, and diligence as physicians and surgeons in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases,” and the defendant’s behavior  is compared with this standard.

The first job of an expert witness would be to establish the “standard of care” in relation to the medical occurrence.  This would be done by showing what a prudent health care professional, with similar education and training, would have done under the same circumstances.  What would be the medical issues considered and addressed, course of treatment chosen and followed and procedures performed by a similar healthcare professional?

Proving Breach of Standard of Care

Next, the plaintiff’s expert witness has to prove that there was a breach of the standard of care relevant to the medical occurrence.  Evaluation of factual testimony provided by other witnesses and going through medical reports and other test records are used to indicate if there has been any deviation from the acceptable standards.  Using these, the expert witness has to prove that the defendant’s care of the plaintiff was not up to the standard of care, as earlier determined.  If it is determined that the care provided was “substandard,” the expert witness may be asked whether the deviation could be the cause of the plaintiff’s injury.


The jury members are in the majority of cases, laymen in the field of medical science.  The outcome of the case depends on how well the expert witness has been able to make the jury members understand the complexities of the treatment and the whether there has been a deviation from the standards of care or not.