Understanding Legal Terms

"What is the “Standard of Care?”

Medical malpractice lawsuits involve "negligence," "standard of care," "causation," and "damages." To succeed in a medical malpractice suit, the plaintiff must prove that the defendant was negligent and that that negligence caused injury. To prove negligence, the plaintiff must prove that the physician violated the standard of care. The challenge in this complicated specialty of law is that there is no "standard."

"Standard of care" is a legal term, not a medical one. It is not established by the medical profession nor is it set forth in the law. It is, literally, a matter of opinion. Both the plaintiff and the defendant will elicit the testimony of experts to establish "what a reasonably prudent doctor would do in similar circumstances." At trial, the jury is faced with choosing which "standard" to apply.

Choosing a Medical Expert

Identifying the best medical expert to establish standard of care is one of the most critical decisions we will make in your case. In this highly-specialized area of law, the experience of your attorney and the credibility of your expert really matters. Often it makes all the difference in the outcome of your case.

Over the past 40 years of trial practice, we have worked with a host of preeminent physicians who yield extensive experience and professional respect in their specialty. We seek physician scholars working at teaching hospitals and in research who are able not only to explain the medicine but who can help the jury appreciate what is sometimes a fine line in standard of care. The expert's ability to effectively communicate complicated aspects of your case is paramount, which is why we often choose experts who are also professors at some of the finest institutions in the country.

Virginia's Standard of Care Statute

By statute in the Commonwealth of Virginia, "the standard of care... shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth and the testimony of an expert witness, otherwise qualified, as to such standard of care, shall be admitted..." The statute further states that "any health care provider who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of practice in which he is qualified and certified."

View our medical malpractice case results for more detail on "standard of care."

Contributory Negligence

The law in the Commonwealth of Virginia is sometimes antiquated. There is perhaps no better example than contributory negligence.

Contributory negligence is the doctrine that “any negligence of a plaintiff which is a proximate cause of the accident will bar recovery.” Litchford v. Hancock, 232 Va. 496, 499 (1987). What does this mean? If you are injured and your own negligence caused the accident or contributed to the cause of the accident, you cannot recover anything. Put another way: even if you or your actions contributed just 1percent of the cause of the accident, you get nothing. Under this outdated law in Virginia, if you are determined to be contributorily negligent then you are not entitled to collect any damages from the party who allegedly caused your accident and injury.

Contributory negligence has been abandoned by most states. Only five jurisdictions recognize this Pure Contributory Negligence Rule: Virginia, Maryland, the District of Columbia, North Carolina, and Alabama. The rest of the states have some form of what is called comparative negligence, where a plaintiff’s recovery is reduced proportionate to his or her fault. Comparative negligence is more forgiving to plaintiffs.

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