Kingston, New York Medical Malpractice Attorney Discusses What A Standard Of Care Is And How It Applies To Doctors


A New York medical malpractice cause of action is essentially one similar to that of negligence—but it is not quite a negligence claim. Basically, you will have to prove that the health care provider had a duty to you and breached that duty by failing under the applicable standard of care. Next, you will have to prove that the doctor, nurse, or other staff’s conduct was the actual and proximate cause of your injury. Actual cause is also called or considered “but for” causation, which means that, but for the provider’s conduct would the patient still have been injured? Proximate cause is simply just whether the conduct’s result was foreseeable. As easy as that sounds to just prove something foreseeable, there can be lengthy chains of causation when you have a multiple doctors, surgeons, technicians, different levels of nurses, medical technicians, and related staff that all may affect the care a patient receives. Finally, you will need to prove that you suffered damages more than economic. Basically this means not having a cause of action for just pain and suffering; but there may be very limited circumstances where that is applicable too.

But the main issue here to be cognizant of is the duty and breach of that duty. This is judged by the standard of care. In fact, this is CRUCIAL and generally the focus of a New York medical malpractice trial. The standard of care is that level of care required of a physician treating a patient. This standard has evolved and been shaped after many years of common law—not statutory law—and gets complex depending on the circumstances. But generally, the standard is what a reasonable prudent physician would have done under those circumstances. In addition, that reasonable prudent physician being used as a benchmark is judged in the locality of the physician providing the services and not state or country wide; this is aptly called the “locality rule.” New York law has developed three components to that duty which are interwoven into the jury instructions and proof of facts required.

The first component is that a physician has a duty to possess the requisite knowledge and skill such as is possessed by the average member of the medical profession. The jury instructions specifically note this, and also that a neuro-surgeon is treated just like other neuro-surgeons. And the bottom line is that any surgeon, by merely performing the surgery, does not guarantee a good result. That is, unless the doctor actually affirmatively DOES guarantee the surgery—then the doctor can be liable!

The second component is that a physician has a duty to exercise ordinary and reasonable care in the applicable of the physician’s professional knowledge and skill. Related is the third component, which requires a physician to exercise his or her duty to use his or her best judgment in the application of this knowledge and skill. When there are conflicting courses of treatment, as long as either procedure is accepted in the field—and the risks, benefits, and alternatives are conveyed to the patient—there will be no issue. This also works the other way that, if another reasonably prudent physician would also have made the same error in the procedure, treatment, or diagnosis.

Recently, I posted how some Kingston medical malpractice and Albany medical malpractice cases can turn into a “battle of the experts” over the standard of care. This is such an important principle and issue in a trial, and really can turn the tides of the litigation. It is very important to have an experienced New York medical malpractice attorney to do any of the litigation your claim may require BECAUSE of the standard of care and how difficult it is, the amount of resources it requires, and the unforeseeable challenges that may arise at trial.

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at