Elements of Proof - Duty of Care

• Existence of Duty
  • The existence of a duty of care exists because of the contractual relationship between the patient and the doctor, hospital, or other health care provider.  When the physician-patient relationship is established, the physician has a duty to:
    • Possess the medical knowledge required of a reasonably competent medical practictioner (health care provider) engaged in the same specialty, and
    • Possess the skills requred of a reasonably competent health care practitioner engaged in the same specialty, and
    • Exercise the care in the application of that knowledge and skill to be expected of a reasonably competent health care practioner in the same specialty, and
    • Use the medical judgment in the exercise of that care required of a reasonably competent practitioner in the same medical or health care specialty.
  • This duty of care applies to the physician in all specialties or health care fields - medicine, chiropractic, osteopathy, optometry, dentistry, etc.  
  • Generally, a health care professional does not have a duty to someone who is not a patient. However, a psychotherapist may have a duty to warn a person if a patient has made specific threats against that person and the patient has the ability to carry out those threats. In such instances, the law usually permits a psychotherapist to breach his or her duty of confidentiality and warn the person threatened by the patient.  Click here for Web Article "Legal Duties Involving Health Care Providers, Patients, and Third Parties" by David T. Armitage, MD, JD.)
  • Cases: 
    • Mitchell v. Hadl, Ky., 816 S.W.2d 183 (1991)
      In arena of medical negligence, physician has duty to use that degree of care and skill which is expected of reasonably competent practitioner in same class to which physician belongs acting in same or similar circumstances.  
    • Noble v. Sartori, Ky., 799 S.W.2d 8 (1990)
      Hospital staff physician, who was not on emergency room duty but who was only physician available who could have treated heart attack victim, could be held liable if his actions in refusing to render assistance to heart attack victim were a substantial factor in causing victim's death.
    • Schrand v. Grant, 1999 WestLaw 540877 (Ky. Ct. App.)
      Doctors' alleged negligence in allowing patient, who was suspected of overdosing on pain medication, to drive home, instead of ordering her to be rushed to hospital, was not relieved by the alleged negligent acts of either patient, who drove her vehicle and became involved in automobile accident injuring motorist, or nurse, who allowed patient to drive, for purposes of negligence action brought against doctors by motorist.  
      
      Nor could liability be escaped by lack of foreseeability of victim from car accident. 
      
      Even intervening criminal act does not relieve one for liability for his negligent acts or omissions, where the criminal act is a reasonably foreseeable consequence of defendant's negligent act.
• Defining the Duty of Care
  • In arena of medical negligence, physician has duty to use that degree of care and skill which is expected of reasonably competent practitioner in same class to which physician belongs acting in same or similar circumstances.  
  • Cases:
    • Hambry v. University of Kentucky Medical Center, Ky. App., 844 S.W.2d 431 (1992)
      In medical malpractice cases, expert testimony is always used to show the standard of care for a particular type of practice and procedure. The standard of care for physicians and surgeons is established by the medical profession itself.
    • Blair v. Eblen, Ky., 461 S.W.2d 370 (1970)
      In a medical malpractice action, evidence of doctor's adherence to proper standard of care may include elements of locality, availability of facilities, specialization or general practice, proximity of specialist and special facilities.
    • Davenport by and Through Davenport v. Ephriam McDowell Memorial  Hospital, Inc.,  Ky.App., 769 S.W.2d 56 (1980)
      Court found use of anesthesiology standards useful as guidance regarding standard of care. 
      • Comment:  Use the internet to search for published standards of care or protocols regarding specific procedures. For example, go to www.google.com and enter the criteria such as 'retinopathy prematurity standards'.
      • See Web Article on 'The Legal Ramifications of NCCN Practice Guidelines' by Frances H. Miller, Esq, Boston University School of Law and Boston University School of Public Health.
    • Morgan v. Hill, Ky. App., 663 S.W.2d 232 (1984)
      A medical doctor can testify as to the cause of any injury, just as a chiropractor may so testify, but a physician may not testify to the chiropractor's standard of care because he does not have the appropriate training and experience to determine what constitutes chiropractic malpractice.
    • Johnson v. Vaughn, Ky., 370 S.W.2d 591 (1963)
      Negligence or wrong of physician in malpractice case must be established by medical or expert testimony unless negligence and injurious results are so apparent that laymen with general knowledge would have no difficulty in recognizing it. 
    • Jarboe v. Harting, Ky., 397 S.W.2d 775, 778 (1965)
      In addressing the "general rule" that "expert testimony is required in a malpractice case to show that the defendant failed to conform to the required standard," the Court stated - "However, it is a generally accepted proposition that the necessary expert testimony may consist of admissions by the defendant doctor. [Citations omitted]. And there is an exception to the rule in situations where the common knowledge or experience of laymen is extensive enough to recognize or to infer negligence from the facts."  This is a case where "the necessary expert testimony" may be found in the "admissions by the defendant doctor." 

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