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Defamation
UMKC School of Law
Levit, Nancy

DUTIES BASED ON THE RELATIONSHP OF THE PARTIES

Medical Malpractice – The Standard of Care

Ø General Standard of Care for Medical Doctors: The customary standard of care in the relevant medical community.
o Note: This means that the standard of care for medical doctors can be higher or lower than the standard of care of a reasonable person because we look to the customs in the medical community.
o Walski v. Tiesenga:
§ Facts: In this case, the expert witness doctor testified on his opinion of the standard of care.
§ Holding: The plaintiff lost because the expert witness did not establish the standard of care. The expert needed to say that was what done in this case departed from the standard care. However, the expert only stated his own opinion, which is short of showing a generally accepted practice in the relevant community.
§ Rule: In a medical malpractice claim, the plaintiff must establish the medical standard of care by proving what the relevant medical community holds to be acceptable practice.
o Smith v. Knowles
§ Facts: The plaintiff simply cross-examined the doctor and failed to present his own testimony. Essentially, the plaintiff was attempting to get the doctor to self-incriminate.
§ Holding: The plaintiff needed to establish the standard of care rather than relying on the doctor to self-incriminate.
o The effect of Community Standards on the Medical Standard of Care:
§ Vergara v. Doan
· Facts: Plaintiff’s claim that the doctor was negligent during the plaintiff’s delivery of her baby.
· Holding: In deciding the standard of care, the court adopted the general/national standard: A physician must exercise that degree of skill, care and proficiency that would be exercised by reasonably prudent, skillful practitioners in the same class that the doctor belongs to under same or similar circumstances. Note: This standard favors plaintiffs.
o The plaintiff was able to show that the doctor’s care fell below the general/national standard.
o Note: The court adopted the general/national standard because there was no real reason to maintain a locality standard – advances in communication and technology no longer require that doctors in different localities and communities be held to different standards.
§ Community Standards:
· Same Community/Locality Standard: The standard of care … is that degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent [physicians], at the time of the operation and in similar localities.
· Same or Similar Communi

of Silence when obtaining a medical expert witness:
§ It is extremely difficult for plaintiffs to find expert witnesses to testify because they would have to rat out others in their professional community. Note, however, that expert witnesses make a lot of money.
§ Questions you might ask a “professional witness”
· Percentage of income that comes from testifying in trials
· Percentage of income that comes from direct care of patients
· Patterns of referrals from lawyers (and not doctors)
· Whether they ever see patients (as opposed to only records)
§ Qualities of an ideal expert witness:
· Someone who is actively engaged in the practice of medicine – 95% of time either teaching or practicing medicine
· Authority in the field – someone from the teaching hospital – a clinical professor
· If they testified before – have they testified on both sides
Use of Medical Treatise to Establish the standard of Care: Although medical treatises are admissible, they cannot be used to establish the standard of care