Medical Forensic Standard of Care


The standard of care is generally defined as the level of care that a reasonably competent and careful medical practitioner with the same or similar education and training would provide under the same or similar circumstances. In California, jury instructions assert that a medical provider is negligent if he/she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful medical providers in the same specialty would use in similar circumstances. Classically, failures to meet the standard of care have arisen from errors of omission or commission, that is, a medical provider fails to do something that should have been done, or the medical provider does something that shouldn’t have been done. Lately, however, more and more cases of alleged standard of care medical malpractice are linked to delay in providing care rather than to omission of care.


Emergency medicine is about the management of emergencies, but most emergency medical conditions are not particularly time sensitive. How soon a minor sprain or a cough secondary to bronchitis is diagnosed and treated isn’t likely to change the course of the ailment much. Certain medical conditions, however, are critically time dependent. Diagnosis and treatment of a problem within the known “window of opportunity” to remediate it will likely result in a good outcome. Conversely, delay in the diagnosis and/or treatment of certain problems is expected to result in fixed damages that could have been avoided, or so a standard of care medical expert may opine.


Certain problems have always been recognized as being critically time dependent. Testicular or ovarian torsion, compartment syndrome, and epidural hematoma with impending brain herniation are examples. However, with the advent of therapies that provide measurable benefit for problems previously hard to diagnose and/or treat, more situations have arisen that present a risk for standard of care medical malpractice wherein the right thing is done, but it is done too slowly.


Take the case of acute myocardial infarction. Percutaneous coronary intervention (PCI) done early in the process has become the standard of care. Performance below the standard of care may result from a delay in getting the EKG, a delay in properly interpreting the EKG, a delay in calling in the cardiac catheterization team to do the PCI, or a delay in transferring the patient to a medical center where cardiac catheterization is done (if the initial receiving hospital does not provide that service). Any of these delays might be expected to result in additional, long-term loss of cardiac function – no error of omission, just an unacceptable time delay constituting a failure to meet the medical forensic standard of care.


Regarding a spinal epidural abscess, a delay of diagnosis and neurosurgical intervention would be expected to result in paralysis that might be prevented if the spinal MRI were ordered early-on in the diagnostic work-up or if the patient were expeditiously transferred to a higher level of care where an MRI could be done and/or a neurosurgeon would be available to decompress the abscess. Waiting to do the MRI from 2:00 am until the MRI tech comes back on-shift at 8:00 am gets the test done and the diagnosis made, but the delay is likely to result in a permanently paralyzed patient.


In closing, one additional problem to note relates to charting with the electronic medical record (EMR). Chart notes are often automatically time-stamped by the EMR, but that time-stamp represents the time that the note was entered, not necessarily the time that the event happened. When was the consult called, when did the emergency physician actually talk to the consultant, and when did the consultant arrive in the Emergency Department? Those times may be critical to the delay-of-care issue but will not be evident from a chart note written and time-stamped at the end of the shift unless the text of the note specifies when each of those events took place in real time.