Failure to exercise a reasonable degree of skill and care; i.e., that degree of skill and care ordinarily employed in the profession under similar conditions and like circumstances. Johnson v. Myers

1. Duty inherent in patient-provider relationship
2. Breach of duty by failing to exercise requisite level of skill and care
3. This breach is the proximate cause of the injury sustained

Zwiren v. Thompson

Some relationships are limited-- what about duties of a Dr. who is asked to read an imaging study or perform a procedure for a referring pysician?

Such physician does not become obligated to counsel the patient about matters beyond those activities. Clay v. Rippy.

Presumption of due care and burden of proof in a med mal suit

Presumption that medical services were performing in an ordinary, skillfull manner.

Burden of proof is on P to show lack of due care, skill, and diligence.

Specht v. Gaines

Expert testimony requirement

In determining the degree of skill and care exercised by the physician, the Jury is is not permitted to use any arbitrary or artificial standard. 

The proper standard of care must be established by the testimony of physicians. 

Hayes v. Brown

T or F: Unfavorable results of a medical procedure constitute malpractice.

False. A physician does not guarantee the results of his/her treatment. Without negligence, an unfavorable result is not sufficient to establish a lack of proper skill, care, or diligence. (No res ipsa).

Oakes v. Magat

In med mal cases, hindsight may not be used in judging the MD's actions, decisions, or thought processes, since a MD can treat a patient based only on knowledge of the patient's condition at the time an evaluation is made or treatment is administered.

Haynes v. Hoffman

The standard is not established by testimony of what a particular MD (the expert witness) would have done. Brannen v. Prince

However, witnesses may be cross-examined about their personal practices. Condra v. Atl. Orthopaedic Group

The "general" standard applied in most actions is considered to be a national standard, not a local standard. Wagner v. Timms; Williams v. Ricks

Locality rule for certain actions against hospitals

A hospital must exercise ordinary care to furnish equipment and facilities reasonably suited to the uses indended and as such are in general use in hospitals in the area.

The "locality rule" is applicable only where P is questioning the adequacy of the available services or facilities of a hospital.

The general national standard, on the other hand, applies to claims questioning the professional judgment of the hospital's employee or training provided to that employee.

Gusky v. Candler Gen. Hosp.

Heightened reporting requirements for insurance payouts

Whenever an insurance co pays out $ on a claim against a MD, it must be reported to the Composite State Bd. of Medical Examiners.

If payout is over $100K or there have been at least 2 prior med mal payouts for the MD, the Board must investigate.

The Board must also conduct an assessment of the MD's fitness to practice medicine if the Board has disciplined the same MD 3 times in the past 10 years.

O.C.G.A. §§ 33-3-27(b), 43-34-37(i)-(j)

In many cases involving an emergency, the provider must be shown to be grossly negligent by clear and convincing evidence. [See hospital liability handout]

In order to find negligence per se, the P must fall within the class of persons the legislature intended to protect, and the harm suffered must be the same harm the statute was enacted to protect.

A finding of negligence per se does not automatically make D liable, as the P must still prove proximate cause.

Groover v. Johnston