What Does Standard of Care Really Mean? An Additional Clarification of Terms

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Jul 24

Written By Martha Merrill-Hall

A majority of individuals, from most professions, do not have a clear understanding regarding Standard of Care. The first thing to understand is that standard of care is a legal term. It is not a medical term. Only lawyers, not doctors, nurses, or midwives should really use the term in their professional lives. 1 Most individuals misunderstand this legal concept. You may hear a provider or lay person say something like “electronic fetal monitoring is the standard of care” or breech deliveries at home without special training is “against the standard of care”. The term is not meant to be used in these, or similar, circumstances. Unfortunately, its misuse in conversation has become a common jargon and may confuse healthcare providers and average consumers. In general, providers should only discuss the standard of care when testifying in court in medical malpractice cases or attending medical malpractice seminars.

Standard of care does not address specific entities, like fetal monitoring, specific infant delivery techniques, or what our professional organizations expect of us as providers. Standard of care in the medical/legal world means, only, “the degree of care and skill of the average midwife, obstetrician, or labor nurse (or orthopedic surgeon, nurse-practitioner, anesthetist etc.) who practices the provider’s specialty, taking into account the medical, nursing, or midwifery knowledge that is available to each of these care providers. Another way to describe SOC is that it is based on the “customary practices of the average provider or what the average provider would customarily or typically do in similar circumstances”.

To say that standard of care derives from our specialty organizations, like ACOG, ACNM, etc. does not refer to specific skills or aspects of care. It refers, only, to a reasonableness standard, which is the general negligence standard. The midwife will be judged by the “customary practices of the average midwife”. “What a reasonable and prudent certified nurse midwife would do in the same or similar circumstances”. A further example: To say withholding childhood vaccinations is against the standard of care is faulty. What will be examined in the legal setting is: what is the degree of care and skill of the average pediatrician who practices pediatrics in the same or similar circumstances.

For providers, safe practices within their field of expertise are the standards which form the foundation of practice, not care. These standards involve patient safety, knowledge which is vital for safe practice, and familiarity with standards of practice; which guide midwives, doctors, and nurses in the delivery of competent, updated, and secure delivery of care. ACOG, ACNM, etc. do not speak to “standard of care”, these organizations speak to standards of practice. ACNM has crafted practice standards to serve as a foundation and guide to safe practice, in each setting of care, no matter how diverse. Again, “standard of care” does not relate to specific actions. It is a general, legal, definition. Judges and juries are the triers of fact, and they will define legal standard of care at trial and whether the care rendered in the case was “reasonable and prudent”.

Medical malpractice can be caused by various actions or failures to act, but the major cause of medical malpractice always comes down to negligence. In general, negligence means not exercising reasonable care or doing something wrong. Negligence is based on the “reasonable person” standard. If a reasonable person would have acted in a certain way, then the person who fails to perform the action would be negligent. In the alternative: if a reasonable person would not have done a certain action, then doing that action would be negligence. In medical malpractice cases, some courts do not apply a reasonable person standard. 2

The so-called “reasonable person” in the law of negligence is a creation of legal fiction. Such a “person” is really an ideal, focusing on how a typical person, with ordinary prudence, would act in certain circumstances. The test to determine whether a person has acted as a reasonable person is an objective one, and it does not take into account the specific abilities of the defendant. For instance, even a person with low intelligence or is chronically careless is held to the same standard as a more careful person of higher intelligence.3

Again, a judge or jury decides whether a defendant has acted as a reasonable person would have acted. When making this decision, the jury generally considers the defendant’s conduct in light of what the defendant actually knew, had experienced, or had perceived. But note that the defendant would only be liable for negligence if it were determined that he owed a duty to the plaintiff.4

With medical malpractice, courts can define negligence as a provider’s failure to exercise the proper standard of care. Concepts of negligence and standard of care go hand-in-hand. Again, both legal terms, not medical ones.

1. What is the Medical Standard of Care? https:// www.alllaw.com/articles/nolo/medical-malpractice/standard-of-… 8/23/2016. All law.com

2. Ibid, page 2

3. Standards of Care and the “Reasonable Person”. Find Law page 1. http://injury.findlaw.com/accident-injury-law/standards-of-care-and-t…

4. Ibid. page 1.

https://www.midwivesontrial.com

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Martha Merrill-Hall

What Does Standard of Care Really Mean? An Additional Clarification of Terms

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