The Standard of Care: Legal History and Definitions

The Bad and Good News

Peter Moffett MD; Gregory Moore MD, JD


Western J Emerg Med. 2011;12(1):109-112. 

In This Article

Abstract and Introduction


The true meaning of the term "the standard of care" is a frequent topic of discussion among emergency physicians as they evaluate and perform care on patients. This article, using legal cases and dictums, reviews the legal history and definitions of the standard of care. The goal is to provide the working physician with a practical and useful model of the standard of care to help guide daily practice.


The concept of "the standard of care" is often discussed among physicians, and yet the legal definition of this term is frequently not understood. Emergency physicians are on the front lines of medicine and are frequently involved in medical malpractice cases. It is estimated that 7–17 malpractice claims are filed per 100 physicians every year.[1,2] States vary in the number of these claims that result in payment (Table 1).[3] Thus it is important to know how the legal system defines the standard of care, and to what standards we as physicians are being held. A chronological approach to the evolving definition of the standard of care through legal history will help to understand the current concept and nuances of the term.

Negligence, in general, is legally defined as "the standard of conduct to which one must conform… [and] is that of a reasonable man under like circumstances."[4] In law, medical malpractice is considered a specific area within the general domain of negligence. It requires four conditions (elements) be met for the plaintiff to recover damages. These conditions are: duty; breach of duty; harm; and causation. The second element, breach of duty, is synonymous with the "standard of care." Prior to several important cases in the 1900s, the standard of care was defined by the legal concept of "custom." As quoted in the 1934 case of Garthe v. Ruppert, when "certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that [the one charged with the dereliction] has fallen below the required standard."[5] Put another way, if others in the business are commonly practicing a certain way that eliminates hazards, then this practice can be used to define the standard of care. A jury still needed to decide, however, whether this "custom" was reasonable and whether the deviation from this "custom" was so unreasonable as to cause harm.


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