JO’Hare VP claims writes: “A breach in the standard of care is more than just an error. A physician can rely on judgment. An error based on his judgment does not automatically reach the threshold of malpractice.”
A physician can use reasonable judgment when he or she is confronted with a “Hobson’s choice”; that is, possible courses of action which comply with the standard of care, each with benefits and risks. An error based on judgment is not malpractice when the physician is weighing two or more treatment plans which comply with the standard of care, and judgment is actually used in weighing the benefits and risks presented by the alternative treatment plans. While human error cannot be eradicated, injuries caused by negligent medical error should be compensated.
Peter writes: “Errors occur every day in medicine the vast majority do not rise to a level requiring a lawsuit“
True, there are many errors in medical care. It is only when the error which is not based on medical judgment, as defined above, causes injury, that a lawsuit is justified.
Peter further writes: The vast majority of obstetrical claims are settled we have no way of knowing if they were cases of negligence. To presume is disingenuous at best. Take “Bad Faith” out of the equation and let’s start allowing cases to go to trial (the serious ones) not the “slam dunks!
Insurance carriers should know whether there is negligence or not. It is pretty clear what the standard of care is and whether the doctor departed from the standard. If carriers and their medical experts do not know if there was negligence, they surely should not settle the case and should allow it to go to trial. The cases are based on medical facts. If the medicine is not on your side, you cannot prevail.