Malpractice

Among physicians, malpractice is any bad, unskilled, or negligent treatment that injures the patient. The standard of care formerly was considered to be the customary practice of a particular area or locality. Most states have modified the "locality rule" into an evaluation of the standard of practice in the same or similar locality, combined with an examination of the state of development of medical science at the time of the incident. This modification has taken place as medicine has become increasingly uniform and national in scope. A majority of states define the standard of conduct as that degree of skill and learning ordinarily possessed and used by other members of the profession. A doctor who has met the standard, as established by EXPERT TESTIMONY at trial, cannot generally be found negligent. Some states have passed statutes that establish the standard of the profession as the test of whether particular treatment was negligent.

Specialists within the medical field are generally held to standards of care that are higher than those for general practitioners. In addition, a specialist or anyone undertaking to perform procedures ordinarily done by a specialist will be held to the level of performance applied to that specialty, although the person may not actually be a certified specialist in that field.

A small number of states apply the "respectable minority rule" in evaluating doctors' conduct. This rule exempts a physician from liability where he chooses to follow a technique used only by a small number of respected practitioners. Courts, however, frequently have difficulty in determining what is a respectable minority of physicians or acceptable support for a particular technique.

Some states use the "error in judgment rule." This principle holds that a medical professional who otherwise subscribes to applicable professional standards should not be found to have committed malpractice merely because she committed an error in judgment in choosing among different therapeutic approaches or in diagnosing a condition.