A guide to understanding the elements of the standard of care

Issue: April 2012

ByLawrence H. Brenner, JD

ByB. Sonny Bal, MD, PhD, JD, MBA

B. Sonny Bal

Lawrence H. Brenner

In 1898, the New York Court of Appeals decided the landmark case of Pike vs. Honsinger. Plaintiff George Pike was a New York farmer, who was riding in his wagon along a road. While passing another wagon going the other way, the colt pulling Pike’s wagon became startled and raised its rear legs, kicking Pike in the knee and resulting in a patella fracture. The pain was not bad, but once on the ground, Pike noticed difficulty walking. The leg was bandaged by a neighboring farmer, and Pike sought the attention of Willis Honsinger, MD. Despite attempts to immobilize the leg, the outcome was poor and Pike could not ambulate as he had before the incident. There was some question as to whether the duration of immobilization was too short to allow full healing, and Pike had attempted to return to his farming.

Significance of the ruling

The trial court found for the defendant doctor, but on appeal, the verdict was in favor of Pike, in part because of relevant expert testimony. Pike expanded the concept of a professional standard of care that had been introduced by earlier cases, and held that medical malpractice was to be judged by a professional standard of care consisting of knowledge, skill, diligence and care. Recognizing the uncertainties inherent in medicine, the Pike ruling also established immunity from legal liability for honest errors in judgment. In the decades that followed, the concepts introduced in the Pike ruling would become the cornerstone of American medical malpractice jurisprudence. In fact, the concept of a “professional standard of care” still remains the dominant criteria for determining professional liability.

The historical context of Pike v. Honsinger is significant because it was decided 5 years after Johns Hopkins established that the equivalent of a college degree was a prerequisite for admission to its medical school and within a decade of the Flexner Report. The scholar Paul Starr described this decade as a time when medicine became a rising sovereign profession.

In the Pike case, the court established four pillars that constitute a professional standard of care. Those pillars are knowledge, skill, diligence and care. Those four pillars are still used as the foundation for determining liability in most instructions to the jury in contemporary medical malpractice cases.

Modern medical practice

Medical malpractice cases alleging lack of knowledge usually involve instances when the plaintiff argues that, at best, the orthopedic surgeon was familiar with a procedure, but that familiarity is not the equivalent of knowledge. The concept of knowledge as one of the four pillars is increasingly relevant as there is a movement in orthopedic surgery towards new technologies and medical advances.

At what point does an orthopedic surgeon become “knowledgeable” about a new technology? The problem of the knowledge standard is exacerbated by the growing recognition that it may be difficult for even the most skilled orthopedic surgeon to develop a knowledge base about a new technology when it may be years before the new technology has been established through patient outcomes as definitively advantageous when compared to old technologies. Indeed, we may be entering a time when the knowledge pillar of the standard of care may need to be mitigated by a broader expansion of the informed consent doctrine where the orthopedic surgeon informs the patient of all uncertainties in a new technology, which may limit the orthopedic surgeon’s knowledge base.

The second pillar is “skill,” which may be nothing more than a shorthand way of the Pike court describing surgical competence. A skillful orthopedic surgeon under the Pike standard may have to demonstrate that there were proper indications for the operation, that he or she was aware of potential complications, that this recognition resulted in actions to reduce the complications, and that there was proper management when complications occurred.

Similar to knowledge, the second pillar involving skill has also become extremely relevant because of the rise of new technologies. Is there a learning curve that allows an orthopedic surgeon under the standard of care to be less skillful than he or she might be once he or she has become more proficient with a new technology? Like knowledge, there are many implications for the informed consent process. Will judicial reasoning reach the point where it will accept — as a defense to a malpractice case — the surgeon’s informing the patient that since the technology is new, he or she may lack the optimal technical skills expected to be acquired after performing a larger number of cases? Conversely, will courts expand the informed consent doctrine to require that a surgeon advise a patient that the patient is within the initial series involving a new technology and the inherent risks of the new technology may be enhanced by the orthopedic surgeon’s inexperience in performing the new technology?

As applied to the standard of care, “care” simply refers to communications, bedside manner, and the development of the type of therapeutic alliance with a patient that arises when the orthopedic surgeon and the patient have formed a strong relationship that is based on a caring attitude of the orthopedic surgeon.

Role of diligence

The most daunting of the four pillars is the concept of “diligence,” an issue that is most frequently raised by plaintiffs’ attorneys in malpractice cases. Diligence arises in two separate contexts in malpractice cases. One context is the performance of orthopedic surgery and the other is in diagnostic formulation, particularly in cases when another physician has referred the patient to an orthopedic surgeon for treatment of musculoskeletal symptoms. There are times when the orthopedic surgeon may assume that the referring physician continues to follow and evaluate the patient for any systemic problems that give rise to the orthopedic complaints. The referring physician may conversely believe that by referring the patient to an orthopedic surgeon, all care referable to the musculoskeletal symptoms at issue will be assumed by the orthopedic surgeon, whether systemic in origin or not.

In these diagnostic cases, plaintiff’s attorneys often argue that a diligent orthopedic surgeon recognizes that systemic conditions can often present themselves as an “orthopedic problem,” does not make unwarranted assumptions, including the assumption that a patient is being worked up or managed by another physician or surgeon for a potential systemic problem, communicates with his or her patient’s other treating physicians when a serious disease process is suspected and treatment of that process is outside the specialty of orthopedics, and seeks referral or consultation when the patient’s symptoms persist and the orthopedic surgeon is getting no closer to a reliable diagnosis.

Case examples

An 8-year-old boy cut his leg in his backyard on a Thursday. He was uncertain whether he cut himself on an old washing machine or a tree. By Sunday morning, there was pain, swelling and discoloration around the injured area. He also had a fever of 101°. His mother took him to the emergency room where he was seen by an orthopedic resident. The resident took a comprehensive history and conducted a complete physical examination. He ordered blood cultures, urine analysis and a complete blood count. He also ordered X-rays, which showed no broken bones or any other unusual findings. The resident diagnosed a cellulitis, prescribed an oral antibiotic and made an appointment for the patient to be seen in the pediatric clinic on Tuesday. Early the next morning, blisters had formed on the young boy’s leg and he was rushed to a teaching hospital. He was diagnosed with gas gangrene and above the knee amputation was immediately scheduled. Prior to the amputation, he had a cardiac/respiratory arrest which required resuscitation. It was later discovered that there was significant neurological impairment as a result of the cardiac/respiratory arrest.

A 35-year-old man slips on ice and sustains a distal third tibia fracture. The on-call orthopedic surgeon evaluates him, notes soft compartments and normal vascular exam, and recommends reamed locked nailing in the morning. Surgery proceeds and the only unusual event is notable soft bone during reaming and interlock placement. The surgeon mentions this to the patient and recommends he discuss it with his primary care provider. The fracture goes on to heal without complication, but a year later, while trying to ski in Utah, the patient falls and sustains a complex tibia plateau fracture. The poor bone quality is appreciated again by a different surgeon, who this time orders a full endocrine lab panel, including total and free testosterone. The patient’s testosterone comes back extremely low, and a formal endocrine consult is obtained.

What do you think of these circumstances? In these case examples, were the orthopedic surgeons diligent in their actions with regards to managing the respective patient’s condition?

Do you think that surgeon B was at least obliged to ensure that the patient’s primary care physician should be informed of the intraoperative findings relating to unusually soft bone? If so, should surgeon B be held partly to blame for the second fracture since correcting the endocrine abnormality could have restored bone quality and avoided the second injury?

Would the obligation and criticism relating to surgeon B change significantly if the patient were an 87-year-old woman, in which case one might argue that relatively soft bone should not come as a surprise? Was surgeon B obliged to work up what he perceived as poor bone quality in a young man?

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For more information:

B. Sonny Bal, MD, JD, MBA, is an associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.

Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California, and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.