Standard of Care
The burden of proof in a medical malpractice case is largely defined by statute. RSA 507-E:2(I) states that in any action for medical injury, the plaintiff must prove the following through expert testimony:
(a) The standard of reasonable professional practice in the medical care provider's profession or specialty thereof, if any, at the time the medical care in question was rendered; and
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
The “standard of reasonable professional practice” is also referred to as the “standard of care.” RSA 508:13 elaborates on the geographical limits (or lack of them) on this element, stating that when evaluating whether a provider has met the standard of care, the fact finder:
shall not be bound or limited by the standard of care accepted or established with respect to any particular geographical area or locality, but shall consider only whether the person against whom the claim is made has acted with due care having in mind the standards and recommended practices and procedures of his profession, and the training, experience and professed degree of skill of the average practitioner of such profession, and all other relevant circumstances.
For example, a plaintiff is not required to prove that a defendant provider failed to meet the standard of care as accepted in New Hampshire; s(he) is only required to prove that the provider failed to meet the standard of care as accepted by the “average practitioner” described above. Prior to the enactment of RSA 508:13, common law allowed providers to be judged only by the standards in their community. See McBride v. Huckins, 76 N.H. 206 (1911).
Case law has also influenced the meaning and use of the “standard of care” element. In Francoeur v. Piper, the Supreme Court reiterated that the statutory element of “standard of care” is an objective standard that does not take the defendant’s state of mind into consideration. 146 N.H. 525, 530 (2001). In Francoeur, which involved a leg amputation following a fractured ankle, the trial court had instructed the jury that “a mere error in judgement, made in the proper exercise of judgment, is not professional negligence.” Id. at 528. The Supreme Court reversed the trial court’s decision, citing that the “mere error in judgment” language “allowed the jury to erroneously conclude that bad judgment based on ignorance could not be a basis for liability as long as [the defendant] genuinely cared about [the plaintiff].” Id. at 528-29. In other words, if a doctor makes a mistake because he was ignorant of the correct diagnosis or treatment course, whether or not they intended to hurt the plaintiff is irrelevant under the law.
In addition to being an objective standard, the “standard of care” is something that must be established through competent expert testimony. In Bissett v. Renna, which involved the negligent administration of an NSAID, the Supreme Court ruled that a pharmacologist lacking a medical degree or training in the relevant fields contravened the requirements of RSA 502-E(2) and therefore could not testify to the standard of care required of the defendant medical doctor. 142 N.H. 788, 791 (1998). Further, the Bissett court ruled that the use of an annual publication detailing the standard of care, absent expert testimony, was insufficient to establish the standard of care. Id. at 792-793 (emphasis added). In plainer words, medical literature or publications are not equal to actual expert testimony under the law – and those experts must be actually be qualified to testify about the medical specialty (or subspecialty) specific to the case.