Today we are covering: what is "standard of care," why it's important to you as a medical professional, and more importantly, how you can stay within your standard of care and make sure that you're not subject to any unwarranted liability.
Amongst physicians or lay people, they usually talk about malpractice in terms of being any unskilled, bad, or negligent treatment that causes injuries to the patient. That can be an action that you take, or an omission that you do not take, in your care of a patient. So, how do we determine if your actions or omissions are bad, unskilled, or negligent? We come up with a “standard of care.” Before we get to that definition, we have to go backwards and ask, “To win a lawsuit, what does the plaintiff have to prove in order to win?”
In most states, the plaintiff has to establish that the professional owed a “standard of care” or a “duty of care” to that patient. For example, if you've chosen to treat that patient, then you now have a duty to treat that patient well, without being negligent or unskilled. There are cases where you don't have a duty to the patient, such as when somebody is really far away and asks for help. Although human beings have an instinct to go help, in certain situations, you don't necessarily have that duty out of nowhere, in a random situation. Rather, you can choose to see the patients that you'd like to see, unless your situation calls for you to be on duty. Let's say, for example, you have an ED or an emergency room. Then, of course, you would have a duty to treat those patients who come into the ED, but ordinarily, there is not a duty to treat somebody unless you've chosen to say yes to that specific duty.
Moving back to the original point, the plaintiff would need to establish a duty of care that you as a professional have breached by acting negligently or in an unskilled way. Furthermore, they would establish that your breach, or the way you acted, was a direct, and (legal language alert) proximate cause of the patient's damages. So either it was a direct cause, or it led to the injury a couple of steps later on.
We're talking today about “standard of care,” and, as lawyers use from more of a negligence standpoint, the phrase “duty of care.” “Duty of care” is similar to “standard of care”; it refers to the medical professional’s obligation to follow the appropriate “standard of care,” so the two phrases are kind of synonymous for the lay people and for the professionals out there. You can think of the duty that you owe to a patient is to follow the “standard of care."
But, what is “standard of care”? A quick anecdote: a lot of my members in Functional Lawyer, and even my wife, who is a functional medicine doctor (DO), have experienced something like this...
A patient comes to them at the Functional Medicine office, and they propose a plan of treatment. The patient is informed, and they have an informed consent dialogue which they document with a written, informed consent form. But then, the next time that patient goes to their primary care provider, their primary care provider, who doesn't have the same education, training, and experience as the functional medicine doctor, says, “Why would they propose that plan of treatment? That's not ‘standard of care.’”
To them, it isn't standard of care because the definition of standard of care is, generally, “the degree of care that an ordinarily prudent medical professional, practicing in the same area of medicine, would have used in the same situation.” Arguably, in that example, a PCP and someone who's board-certified and in family medicine are all in the same area of medicine. However, that definition doesn't take into account the education, training, and experience of the two doctors. One who presumably has been raised and trained conventionally doesn't have the same tools in their toolkit to treat somebody functionally; they don't have the same knowledge, education, or experience in treating functional medicine in that kind of mindset. We'll get to another definition in a minute, but let's talk a little bit more about what standard of care is and how we determine the same education, training, and experience.
As America was growing, and as transportation and communication were getting faster, obviously the standard of care that you would receive at a hospital in Boston or New York in the 1800s, or even the early 1900s, would be much greater than your town doctor in Montana or South Dakota or the Black Hills area during the Gold Rush, for example. Because the doctors in Boston and New York had access to a lot more information, both from the East Coast of the United States and from people coming back and forth from Europe, they would have access to a lot more tools, breakthrough medical discoveries, and new processes. All this to say that a doctor in either rural America or way out West about 100 years ago, would definitely not be held to the same standard of care. That led to what's called the “locality rule,” and you'll still see this if you Google “standard of care” or “medical malpractice locality rule.”
The standard of care used to be that a doctor should have the same treatment as other doctors within the same area of medicine in their locality. It was actually designed to help doctors who were in rural areas not be exposed to excess liability because there's no way they could have had the same information and training as somebody in a metropolitan area in the early part of the last century.
However, as the country has grown and transportation and communication have both taken off, no pun intended, the locality rule has been a little bit replaced by a kind of uniform national rule. Therefore, most states now define standard of care, as “the degree of skill and learning ordinarily possessed and used by other members of the profession.” That is to say, within your same specialty. Specialists within the field are generally held to standards of care that are higher than those for general practitioners, and specialists will be compared to other specialists in their field. For our purposes, we can say functional medicine has its own specialty these days (at least that's what we will propose), and therefore you can take comfort in the fact that your education, training, and experience now is part of a growing (but still a minority) of doctors and other healthcare practitioners doing the same thing, ordinarily done to the level of performance applied to functional medicine as a specialty, even if you're not certified as a specialist in that field.
This is where we need to talk about what's called the “respectable minority rule.” Within functional medicine, you would be compared to other functional medicine providers, not PCPs who are conventionally trained and have no additional knowledge of functional medicine. You can take some solace in the fact that, as long as you're being prudent within your functional medicine training, experience, and education, then you will be following your standard of care. It's important to know that that doesn't help you if there are any kind of actions against you or lawsuits. What's going to come into play here soon is the “respectable minority rule.”
I’ve said that functional medicine is growing, and there's a lot more knowledge and acceptance now than there were even five years ago and definitely ten and twenty years ago. And functional medicine is just a term for the approach. There are no board certifications, nationally, that are recognized by states, although that should be changing soon. So, in today's world, we would fall into the respectable minority. What that means is, before this doctrine came about, doctors who were doing things that were a little bit more cutting edge or a little newer, and still helpful, good, and backed by evidence and science, were kind of going out on a limb because they were being compared to their peers who were trained in the same way but had no idea what that method or protocol was. So a lot of states have implemented what's called the “respectable minority rule” which means that even if you deviate from mainstream medicine or what the majority of physicians in your specialty would do, if you choose to follow a technique that's used only by a small number of respected practitioners, you would be exempted from liability as long as you followed that kind of standard as well.
It can be difficult for a court or judge (court and judge are synonymous for attorneys) to determine what is a respectable minority for a particular technique or process or protocol. But, if you get some good expert witnesses and expert testimonies that back you up from other functionally trained doctors (hopefully they're certified and they have a lot of certifications after the name; jurors like to see that), you can take comfort in the fact that you're going to be compared to other people doing the same thing as you with similar education, training, and experience for your standard of care. As long as you follow that standard, you ought to be in good shape, knowing that your actions are under your standard of care. And, there's another safe harbor for you in that if you can show that a respectable minority of doctors are doing the same thing and with the same caution, prudence, and care for patients, then you would also likely fall into a “respectable minority” exemption, or safe harbor, for the things that you're doing.
It's very important to note that as you're building your practice, and money isn't exactly overflowing in your cup, it can be tempting to take on patients where your skills are not at the level required. For example, if you hang your shingle and open your practice and are really just doing functional medicine with the temptation to accept whoever comes in, then you need to know the line at which your education, training, and experience is crossed. If you start to feel uncomfortable, you should probably trust your gut because that's where people get in trouble: when they start something new that they don't have a lot of experience. Then a patient could end up getting hurt and potentially ask, “How much training did you have on this machine, or for these hormones, or for this laser?” and you can't point to a lot of training. You could be in trouble here. Or, if you are doing something experimental and you didn't get informed consent from the patient, then it starts to be an issue, so be careful and know your own limitations. Your education, training, and experience are what matters. If you're not trained up on the Bredesen protocol, if you're not trained up on the Walsh protocol or anything else, maybe don't take on those patients. If your bread and butter is people who are generally autoimmune, be careful trying to take on people who are a little bit more special, like mold patients, Lyme patients, metal toxicity patients, etc. My point is, be careful when you go out on a limb, and stay within your education, training, and experience. And if you do so prudently, you ought to be okay and insulated from any kind of negligence or malpractice actions against you.
Any professional in any profession that requires a license, if they practice long enough, will have some dissatisfied person that may lead to some sort of a claim against them. If you practice law long enough, you'll get one. If you practice medicine long enough, you'll get one. Many of you may have already had them. But you can take solace in the fact that if you stay within the reasonable education, training, and experience that you have, and it's taught by respective institutions or training programs, then you'll be safe and you’ll be following the standard of care.
The standard of care, once more, is “comparing yourself to peers in your specialty that are undertaking to perform procedures that are applied to the level of performance to other specialists in that field.” So, again, if there's a group of you, and you deviate from that group, it may be a little bit of an issue, but if you're being reasonably prudent, and you're taking all the right precautions and proper steps, researching and backing it up by some kind of judgment, you will be safe in following the standard of care.
There is another doctrine that you should be aware of as well. A reasonably prudent doctor who has a choice between two paths to make a decision should not be held liable if they chose one path and it didn't work out, given that it is more of a judgment call. Part of the art of doctoring or being a health professional, and less of the science, is where the doctor says, “Let's try this method, and let's see how that goes and then if we have to pivot later on, then we can pivot there,” as long as that choice is one that a reasonably prudent doctor would make in using their professional judgment. There's another safe harbor there for you.
Don't be afraid if somebody who's conventionally trained is saying that's not “standard of care,” or your patients explained to you that their PCP said that your treatments are not standard of care. If you've backed it up with your education, training, and experience, you can explain to the patient that, “Yes, of course, ‘standard of care’ is not the same for me as it is for your PCP who doesn't have the same training.”
And with that knowledge, I hope you all sleep better tonight, and if you have any questions at all, reach out to us at Functional Lawyer.
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