To err is human.

Doctors are human.

Doctors will therefore err.

…and doctors understand this.

However, when doctors look at the law, they want to know why their mistakes are called “negligence,” a term that, to them, insults their profession.

The answer lies in a common misunderstanding of what “negligence” actually means in law.

Ask most people—or even most doctors—what it means, and they will describe someone who is acting carelessly or thoughtlessly. However, as a “term of art”—a word that has a specific meaning to lawyers— “negligence” means failing to meet an accepted standard of conduct. The negligent person may have been careful and put much thought into what they were doing, but they still failed to meet a basic requirement. By contrast, being careless or thoughtless would be the rare medical event of gross negligence, which is conduct that is so reckless that it evinces a frank disregard for the well-being of the patient.

Negligence is also a one-to-one matter. The fact that an error rate cannot be reduced to zero across a population has no bearing on the fact that each individual patient, to whom a duty of due care is owed, is entitled to appropriate diagnosis and treatment within the circumstances of their own case. Conversely, the doctor’s actions must be evaluated in the context in which they occurred.

Jurors in a malpractice case are instructed by the judge on what “negligence” actually means before they deliberate. Despite how they may use the word in their own lives, before they go into the jury room, they will understand that in this case, it only means whether or not the doctor in question met the medical standards that the specific situation, with the specific patient, required.

So, now that we have defined the term, we can get the answer to the most common question that doctors have: “Since I never intended to harm my patient, how can I be liable for what was just a completely unintentional mistake?”

Actually, negligent conduct must be unintentional. If a doctor decides to convince patients to have unnecessary procedures so that the doctor can bill for them or plans to do a poor closure that leaves a scar on a patient they do not like, then those would be an intentional act of fraud and assault, not medical negligence. However, if a doctor evaluates patients improperly and ends up doing unnecessary procedures because the doctor erroneously believed them to be necessary or leaves a scar because they have poor surgical technique even though they are trying to perform the closure properly, then those would be negligent acts.

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Negligence is, therefore, best understood as a relative concept, comparing a defendant doctor’s actual conduct in a specific case to a level of accepted conduct.

Using that concept, we can then define what doctors care about most: What is expected of them so that they will be considered non-negligent? Being non-negligent means possessing the level of skill and knowledge that equivalent practitioners do and using that skill and knowledge as is considered appropriate in the medical community.

The latter aspect is what we usually refer to as the Standard of Care, but when an expert is testifying, they will most likely use the more explanatory term “good and accepted medical practice.” This really is a preferable term because it addresses that what is required in a practical sense is to act for the patient’s benefit as well as is possible under the circumstances.

This is important as a matter of fairness because it encompasses individual medical judgment and the fact that appropriate medical care is often delivered by different methods. It also addresses the fact that every facility does not have every capability, and this may restrict what a doctor can do.

But, speaking of fairness, what about retrospective bias when it comes to assessing whether there was negligence? How can that be fair?

That retrospective bias will be present is inevitable. After all, no one sues until something bad has happened, and that event will then point back to the conduct that is now alleged to have been negligent. Every staircase fall case presumes that the step or banister was defective, every moving violation case presumes that the driver of the other car could have avoided the collision, and every case against a roofer presumes that the ruinous leak could have been prevented by proper waterproofing. If retrospective bias were a bringing a case for damages, no such case could ever be brought.

Retrospective bias is also not a violation of the law’s aversion to post hoc analysis because no defendant is expected to have acted in the past according to the future. However, every property owner should expect people to use the steps and banister, every motorist should expect that others will be driving on the same road, every roofer should expect roofs to be rained upon, and every doctor should expect that every encounter with a patient will be for diagnosis and/or treatment of a potential underlying condition. Therefore, the fact that, in a case alleging misreading of a mammogram, we now know that a breast cancer was present earlier does not change the fact that a radiologist is aware that every mammogram that he or she reads is conducted to detect cancer and so warrants a level of care needed to make a valid assessment. In other words, since each mammogram presumes the possibility of cancer, it is not unfair to later evaluate its reading within the scope of the knowledge that there was, in fact, a cancer.

So, if retrospective bias can be present, how does the defendant deal with it?

The answer is that it is the job of the defense expert to provide the counterbalance. This will be the inspector who testifies that the banister or step met code requirements, the accident reconstructionist who testifies that there was nothing that the defendant motorist could have done to prevent the crash, the industry specialist who testifies about the limitations of all roofing products in the face of extreme weather conditions, and the well-credentialed physician who testifies that the breast lesion had not manifested suspicious characteristics on the mammogram in question that would alert a reasonably prudent radiologist to suspect its true malignant nature and so it was actually worked up properly under the BIRADS system.

What is never permissible, however, in trying to establish negligence, whether at a deposition or in court, is to ask the defendant doctor a question such as, “If you knew then that this was (the serious condition that is the subject of the suit) would you have done anything differently?”  Negligence or non-negligence are fixed in time to the circumstances of the events, and the standard to be met is to have acted reasonably under those circumstances.

In summary, while “negligence” is a charged word that physicians understandably find offensive, what we are discussing is an evaluative process that is designed to be fair because it does not demand that a doctor be perfect or follow a single cookbook method of diagnosis or treatment. Instead, it looks at the real-world circumstances when the care was given and the reasonability of the doctor in meeting their duty to the patient under those circumstances.