Duty and the Breach of Duty are obligations that are imposed on every healthcare professional and every physician when evaluating the possibility of medical malpractice. A physician, for example, has the duty to do what any other ordinary reasonable physician would do under the same or similar circumstances. A doctor can not be required or expected to have unreasonable knowledge in any given situation.
The duty arises from an evaluation of the facts. The facts would include: how the patient came to the physician; what the doctor assesses the patient is doing; and how the doctor responded to the facts. Duty also comes from other places. It comes from the medical literature, studies, and journals. The science of Medicine is ever evolving. New articles are constantly being published. Doctors have an obligation to keep up with the latest medical advances. Lawyers who are commencing medical malpractice cases also have the obligation to find the appropriate literature that would identify what is the standard of care, or the duty, on the part of that physician.
Almost every physician belongs to professional associations. For example, an Obstetrician will likely belong to the American College of Obstetricians or Gynecologists also called ACOG. ACOG publishes various bulletins and journals. One of the sources to obtain information of the duty of an Obstetrician would be journals and articles published by the ACOG. This is a source from their own professional organization, specifying how these doctors should handle any particular situation.
These professional organizations are fully aware that malpractice cases and lawyers are utilizing these journals to see what the standard of care is. These publications focus on writing in way that makes it difficult to simply identify an actual standard, however, it is possible to identify guidelines. The articles detail best practice for certain medical situations, and as a result, these resources help lawyers to identify what the physician’s duty was at the time. In addition, there are regulatory standards that produce and identify what a physician’s duty might be. For example, health codes for both New York City and New York State. There are rules and regulations that a particular hospital has in place on how certain conditions should be identified and treated. All these factors come together to identify what a physician’s duty may be.
Breach of duty comes once an understand of the duty has been obtained. It is simply a matter of recognizing the doctor’s duty within a given situation and evaluating on whether or not the doctor followed their duties. If duties were not followed it is considered Breach of Duty. More difficult is the issue of Causation ,which we will discuss later. If you have a case where you think there may have been a breach of duty, please contact me and let me see if I can help you.
This personal injury blog post was provided by Marc Chase, an Experienced Brooklyn Medical Malpractice Lawyer