Standard of care
Encyclopedia
- For the English lawEnglish lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, see standard of care in English law.
In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
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The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
, and is usually phrased in terms of the reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
. It was famously described in Vaughn v. Menlove (1837) as whether the individual "proceed[ed] with such reasonable caution as a prudent man would have exercised under such circumstances."
Professional standard of care
In certain industries and professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent manufacturer of a product, or the reasonably prudent professional in that line of work. Such a test (known as the 'Bolam TestBolam Test
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals : the Bolam test...
') is used to determine whether a doctor is liable for medical malpractice
Medical malpractice
Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and...
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The standard of care is not relevant in many cases and is only there to help the defendant.
Medical standard of care
A standard of care is a medical or psychological treatment guideline, and can be general or specific. It specifies appropriate treatment based on scientific evidence and collaboration between medical and/or psychological professionals involved in the treatment of a given condition.Some common examples include:
- Treatment standards applied within public hospitals to ensure that all patients receive appropriate care regardless of financial means.
- Treatment standards for gender identity disordersStandards of care for gender identity disordersThe Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People are non-binding protocols outlining the usual treatment for individuals who wish to undergo hormonal or surgical transition to the other sex...
1. Diagnostic and treatment process that a clinician should follow for a certain type of patient, illness, or clinical circumstance. Adjuvant chemotherapy for lung cancer is "a new standard of care, but not necessarily the only standard of care." (New England Journal of Medicine, 2004)
2. In legal terms, the level at which an ordinary, prudent professional having the same training and experience in good standing in a same or similar community would practice under the same or similar circumstances. An "average" standard would not apply because in that case at least half of any group of practitioners would not qualify. The medical malpractice plaintiff must establish the appropriate standard of care and demonstrate that the standard of care has been breached, with expert testimony.
3. A physician also has a "duty to inform" a patient of any material risks or fiduciary interests of the physician that might cause the patient to reconsider a procedure, and may be liable if injury occurs due to the undisclosed risk, and the patient can prove that if he had been informed he would not have gone through with the procedure, without benefit of hindsight. (Informed Consent Rule.) Full disclosure of all material risks incident to treatment must be fully disclosed, unless doing so would impair urgent treatment. As it relates to mental health professionals standard of care, the California Supreme Court, held that these professionals have "duty to protect"
individuals who are specifically threatened by a patient. [Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976)].
4. A recipient of pro bono (free) services (either legal or medical) is entitled to expect the same standard of care as a person who pays for the same services, to prevent an indigent person from being entitled to only substandard care.
Medical standards of care exist for many conditions, including diabetes, some cancer
Cancer
Cancer , known medically as a malignant neoplasm, is a large group of different diseases, all involving unregulated cell growth. In cancer, cells divide and grow uncontrollably, forming malignant tumors, and invade nearby parts of the body. The cancer may also spread to more distant parts of the...
s, and sexual abuse
Sexual abuse
Sexual abuse, also referred to as molestation, is the forcing of undesired sexual behavior by one person upon another. When that force is immediate, of short duration, or infrequent, it is called sexual assault. The offender is referred to as a sexual abuser or molester...
.
Children
A special standard of care also applies to children, who, in a majority of jurisdictions, are held to the behavior that is reasonable for a child of similar age, experience, and intelligence under like circumstances. (Restatement (Second) of Torts §283A; Cleveland Rolling-Mill Co. v. Corrigan, 46 Ohio St. 283, 20 N.E. 466 (1889).) In some cases it means that more may be required of a child of superior intelligence. (Compare Jones v. Fireman's Insurance Co. of Newark, New Jersey, 240 So.2d 780 [La.App. 1970] with Robinson v. Travis, 393 So.2d 304 (La.App. 1980). An exception is for children engaged in "adult activity." (Robinson v. Lindsay, 92 Wash.2d 410, 598 P.2d 2392 (1979) (snowmobile); Nicholsen v. Brown, 232 Or. 426, 374 P.2d 896 (1962) (automobile); Daniels v. Evans, 102 N.H. 407, 224 A. 2d 63 (1966) (motor scooter); Neumann. v. Shlansky, 58 Misc. 2d 128, 294 N.Y.S.2d 628 (1968 (playing golf)) What constitutes an "adult standard" may depend on local statute, and some have arbitrary age distinctions.Persons with disabilities
A person with a disability is held to the same standard of care that an ordinary reasonable person would observe if he suffered from that same disability. (Roberts v. State of Louisiana, 396 So.2d 566 (1981) (blind postal employee)) However, courts do not recognize a person with a mental disability to be subject to any such special standard, and are held to the "reasonable prudent person" standard, except when the onset of mental illness is unforeseeable and sudden (e.g., Breunig v. American Family Insurance Co., 45 Wis.2d 536, 173 N.W.2d 619 (1970) (sudden hallucinations while driving).) In some situations, this could work an injustice. Physical handicaps and infirmities, such as blindness,deafness, short stature, or a club foot, or the weaknesses of age or sex, are treated merely
as part of the “circumstances” under which a reasonable man must act.
Duty to inform self of responsibilities
A person engaged in a special and potentially dangerous activity must know or inquire of possible hazards or of any special duties and responsibilities inherent in that activity that might affect their ability to exercise reasonable prudent caution (cf, Delair v. McAdoo, 324 Pa. 392, 188 A. 181 (1936) (driving on worn tires).) Custom and practice of usage may be useful evidence for determining the usual standard, but not determinative of what a reasonable prudent person ought to be required to do or know (cf., Trimarco v. Klein, 58 N.Y. 2d 98 (1982) (showerdoor glass).) As Justice Holmes classic statement expresses it, "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is complied with or not."Person of below average intelligence
A person of substandard intelligence is held under common law to the same standard of a reasonable prudent person, to encourage them to exert an increased effort of responsibility to their community, in light of their handicap, and as a result of the practical difficulty of proving what reduced standard should apply (Vaughn v. Menlove, 3 Bing. (N.C.) 468, 432 Eng.Rep.490 (1837).) Restatement (Second) of Torts, § 289 cmt. n (noting that the “reasonable person” standard makes allowances for age and physical disability but not “attention, perception, memory, knowledge of other pertinent matters, intelligence, and judgment. Oliver Wendell Holmes, The Common Law, 108 (Little, Brown, & Co. 1881): “The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men.”Attorney
An attorney is held to the standard that any reasonable attorney in possession of the same knowledge and skill that an ordinary member of his or her profession possesses, as long as he is acting with reasonable care and diligence, in good faith and honest belief that his advice and acts are well founded at the time. Here, mere error in judgment are excusable (Best Judgment Rule) and cannot be judged solely with the gift of hindsight without substantial injustice. He or she is required to exercise ordinary care and caution (diligence) in the use of that skill (Due Care Rule), and procedural and technical failures are held to be the most common breaches. (cf, Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954). (failed service of process).)Person subjected to unexpected danger
In Cordas v. Peerless Taxi Company, 27 N.Y.S.2d 198 (1941), Justice Carlin colorfully held that a taxicab driver hijacked at gunpoint by a fleeing mugger in New York City may be excused from negligence for jumping out of the moving taxicab to save his own life, leaving the cab on an unguided trajectory towards bystanders. While some persons might choose to be singularly heroic, that standard is not one that is required for an ordinary prudent person. Such a person is held excused from liability, even if such failure might endanger others. An ordinary prudent person is not under any obligation to undertake a heroic duty at the risk of his own life. "The first duty in an emergency is to one's own self, as long as that person did not contribute to or cause the emergency." (Emergency Doctrine.)Negligence per se
When a state criminal statute is violated in the course of performing an assertedly negligent act, under certain circumstances a court may adopt the statute as establishing a standard of care for tortious liability as well. This is negligence per seNegligence per se
Negligence per se is the legal doctrine whereby an act is considered negligent because it violates a statute . In order to prove negligence per se, the plaintiff must show that# the defendant violated the statute,...
. It follows the reasoning that if a legislature reached findings of public interest in enacting the statute, these same considerations could arguably apply in cases of negligence. There is no negligence per se doctrine in federal law.
Four elements are deemed necessary for a statute to apply in a negligence case. First the person harmed must be a member of the class of persons which the law was intended to protect. Second, the danger or harm must be one that the law was intended to prevent. Thirdly, there must be some causal relationship established between the breach of the statute and the harm caused. Fourthly, the criminal statute must be concrete, specific and measurable enough to clearly establish a standard of breach. Courts are reluctant to create new torts out of criminal statutes. (See Restatement (Second) of Torts, sections 297, 288.)
However, there are five valid excuses that are available for a defendant to defeat a standard of negligence per se. (Restatement (Second) of Torts section 288.1(2).) First, the defendant may not know of the breach due to incompetence. Secondly, he might either lack knowledge or reason to know of the breach or duty. Furthermore, for some explainable reason, he may be unable to comply, despite diligence. The breach may be due to a sudden emergency not of one’s own making. And lastly, in special situations it may be safer to not comply than to comply. In cases where these defenses are applied, negligence per se doctrine creates no more than a rebuttable presumption of negligence that shifts the burden of proof from the plaintiff to the defendant.
Reasonable Person/Ordinary Care
In balancing risks to establish a reasonable personReasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
's standard of ordinary care, the rule has been established that the probability of the harm potentially caused (P) must be balanced along with the gravity of the harm which could result (G), against the burden of conforming to a new and less dangerous course of action (B) along with the utility of maintaining the same course of action as it was (U). This is sometimes noted in shorthand as P+G v. B+U, deriving from a formulation expressed by Judge Learned Hand. (United States v. Carroll Towing Co.
United States v. Carroll Towing Co.
United States v. Carroll Towing Co. 159 F.2d 169 is a decision from the 2nd Circuit Court of Appeals that proposed a test to determine the standard of care for the tort of negligence...
, 159 F.2d 169 (1947).)
See also
- National Care StandardsNational Care StandardsThe National Care Standards are a set of standards for care services in Scotland.They were set up by the Scottish Government, as required by the Regulation of Care Act 2001. The standards were devised after considerable consultation with service providers, service users, various expert bodies and...
(Scotland) - Care Standards Act 2000Care Standards Act 2000Care Standards Act 2000 is an Act of the Parliament of the United Kingdom which provides for the administration of a variety of care institutions, including children's homes, independent hospitals, nursing homes and residential care homes....
- Standard of care in English law
- General Social Care CouncilGeneral Social Care CouncilThe General Social Care Council is a the regulator of social workers and social work students in England. The GSCC protects the public by requiring high standards of education, conduct and practice of social workers by ensuring that only those who are properly trained and committed to high...
- Duty of careDuty of careIn tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
- Reasonable personReasonable personThe reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...