In legal cases, a term regularly shows up: “standard of care”. It is talked about, defined and ruled on by the court. In many state statutes, the term is defined as something similar to: “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

What is the standard of care in its most basic terms?

If I am a pedestrian, do I have a “standard of care” as I walk along the street? Of course I do. I must watch the pavement as I am walking so as not to trip over obvious hazards. If I come upon a blocked area of the sidewalk, where work is being done for example, I have the duty to navigate carefully and as safely as I can around that hazard in continuing my walk. I have a duty to avoid running into other pedestrians using the sidewalk. If I must cross the street, I have a number of additional duties I must fulfill.

Why do we have “duties” and “standards” by which we must act? Without them, no one would know what was expected of them and we would not be able to anticipate how to expect others to conduct themselves in given situations.

A car is traveling down a dark, deserted country road, approaching an intersection with a stop sign. The car does not stop at the stop sign and, instead travels through it at highway speed. No other cars were approaching the intersection at the time. Was the driver negligent? Did the driver deviate from the reasonable standard of care? The driver was negligent, but, luckily, caused no damage to anyone. So, if a police officer was around, a ticket would be issued, but nothing further.  So, was it excusable, since no one was hurt? Absolutely not. The same example, but the approaching driver does not see an approaching motorcycle. The motorcyclist is struck and killed. A completely different set of circumstances results, but culminate from the exact same perceptions on the part of the driver in the car. In both situations, the driver “honestly” saw no harm by running the stop sign.

This is particularly true for professionals. The public absolutely must be able to depend on certain standards of performance from professionals. For an engineer who constructs a bridge, we expect that the bridge will carry the weight reasonably expected and will not collapse with that weight. We expect that the professional will act in a manner expected from other similar professionals.

When a doctor decides to treat people, she decides to work within a reasonable standard of care accepted by other physicians. Does that mean if a physician or other professional makes a mistake that they have deviated from the acceptable standard of care? Not necessarily. It means that the professional is obliged to act reasonably as judged by similar health care providers.

If a patient arrives at the hospital with symptoms consistent with 3 or 4 different potential illnesses, it is the job of any physician to determine those illnesses, which are life threatening and try to eliminate or include those first. If the condition could be life threatening, the professional is obligated to continue their investigation until they can determine what course of treatment is best for the patient.

Physicians, like any professional, have pressures extraneous to their profession. In the case, of an engineer, it may be cost overruns and their client may be pushing to cut corners somewhere to minimize those cost overruns. With physicians, it may be a hospital or insurance company. It is the job accepted by the any professional to comply with the reasonable standard of care. In the case of physicians, it is to determine those patients who require hospitalization in order to determine their illness and those who do not need hospital care.

Professionals are required to reach reasonable, well thought, courses of action within their profession. They typically go through additional schooling to prepare them for evaluating a reasonable course of action.  The subject of a professional’s decision may seem complex, but their standard of care is no less real than the driver or pedestrian.

In his June 11, 1963 civil rights address, President John F. Kennedy confronted head-on the unfair treatment of African Americans in our society under our then-existing system of laws. President Kennedy, in imploring Congress to pass fundamental civil rights legislation, stated:

“…the old code of equity law under which we live commands for every wrong a remedy, but in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens and there are no remedies at law.”

Unfortunately, President Kennedy’s reference to our system of justice having the ability to remedy every wrong states only an ideal, but, sadly, not reality. Sometimes the difference between principle and truth is the result of legislative inaction or by legislative activism. Perhaps the most glaring example of legislative activism stripping away the “guaranteed” rights of citizens to have both their day in court and a remedy for every wrong can be seen in the medical negligence arena.

Let us examine the following two hypothetical scenarios.

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Recently, a woman was impregnated at a fertility clinic with another woman’s embryo.  The woman has decided to give birth and give the baby to the biological mother.  This preventable and heart breaking mistake should not have happened.

There have also been mistakes in which parents have had their eggs tested for genetic defects only to have the genetically damaged egg implanted rather than the genetically sound egg.  It is a very costly investment both emotionally and financially.

A California couple discovered that the Laurel Fertility Care Clinic destroyed 7 of 13 viable embryos because they were mistakenly inseminated with the wrong sperm.  In this case the couple had a contract that provided no embryos were to be destroyed and the decision by the clinic prevented the couple from the opportunity to make their own decisions.

What is the cause of this problem? At least in part it is likely connected to the burgeoning demand for fertility treatment in the last several years. A report from Mail OnLine sets forth that the number, in Great Britain, of women going through in vitro fertilization has increased from 23,000 in 1995 to 35,000 in 2009. Yet, the number of facilities who handle in vitro fertilization there has not increased with the numbers of women seeking this treatment.

Last Thursday, Carolyn Savage gave birth to a child belonging to another couple. The embryo was mistakenly implanted in Ms. Savage, but actually belonged to Shannon Morrell. Both Ms. Savage and Ms. Morrell were hoping for a child; because of Ms. Savage’s unselfish act, she will be denied her child, but she will provide another family with their child.

The American Fertility Association issued the following press release:

The American Fertility Association Responds to Alleged Embryo Mix-Up Case in Ohio
September 24, 2009 – An Ohio woman, 40 year old Carolyn Savage, claims a fertility clinic implanted the wrong embryo and that the baby she’s due to deliver the first week in October is not hers.  Several media reports state Savage and her husband plan to give the baby boy to his biological parents.  The name of the clinic is not being released in this very rare alleged case.
The AFA is issuing the following statements regarding the matter:
Medical:
“If the facts in the Ohio case are concordant with media reports, it’s a very unfortunate circumstance for all concerned, a result not to be minimized or trivialized. The story is newsworthy, however, because it is an extremely rare event.
In 2007, there were 132,262 IVF cycles performed in the United States (Fresh, Frozen and Donor Egg, per the CDC) in which more than 300,000 embryos were placed into the intended recipients. Embryology laboratories have extremely rigorous procedures to maximally ensure public safety and the health of our patients and their children born of IVF.
The Ohio case is rarer than 1 in a million and I speculate that human error, not malintent, will prove to be the root cause. I have every confidence that each IVF program in the country will review their procedures and discuss this case to reinforce what we already know, that the work we do each and every day is very special and that the hundreds of thousands of patients we help each year are counting on us to do our best every day.”
-Alan Penzias, MD, Member, AFA Board of Directors
Legal:
“Unfortunately, due to the acknowledged negligence of the IVF Physician and clinic, this Ohio couple, by choosing to proceed with the pregnancy, is obligated to afford the other couple the legal rights to this little boy.  Any case, such as this that would go before a court of law, would likely grant full legal and physical custody to the other couple without any visitation to the Ohio couple.  They appear to be aware of this – such an unfortunate event for all parties involved.”
-Theresa Erickson, Esq., Member, AFA Board of Directors; Member, AFA Legal Advisory Council
Mental:
“As a psychotherapist and co-chair of The American Fertility Association, patients receiving treatments live in fear of this happening to them.  The AFA continues to encourage patients to become educated consumers and ask their treatment providers about their procedures for safeguarding their genetic materials. Programs are required to have in place strict guidelines that are overseen by numerous state and federal agencies requiring very specific procedures to be practiced and in place by each reproductive center.
These incidents are rare and patients should feel assured that the majority of centers follow these rigorous guidelines.  When these rare accidents do occur, it can be not only psychologically devastating to the couples involved in this mix-up but emotional damaging to the thousands of patients who are currently receiving or starting fertility treatments. We at the AFA hope that the media will allow these couples, the children involved, and the baby yet to be born to privately get the support that they need to cope with this emotionally difficult experience.”

This type of error can certainly be characterized by the national association as a “rare” error, but I am sure that neither Carolyn Savage nor Shannon Morrell can find much solace in this representation. Carolyn Savage will undoubtedly always wonder about the baby she brought into this world.

Making the decision to go to a fertility clinic in the hope of trying to conceive a child and/or have eggs tested for genetic factors must be a very difficult decision. All clinics and laboratories should have protocols in place to prevent these devastating errors from happening; causing devastating consequences to the parties involved. This is really a zero error tolerance business engaged in by fertility clinics. Providing an explanation such as that offered by the American Fertility Association is simply insufficient and lacks the very personal consideration due to these victims.

Become an educated consumer. Read, ask questions, be a persistent presence in the process of any medical procedure you undergo.

Once upon a time there was an insurance crisis…a lawsuit crisis…a medical malpractice crisis…a series of crisis manufactured by industries who have a need for consumers to have someone other than them to blame. The insurance industry, the healthcare industry, Associated Industries — the business of business organizations; they all have very distinct business reasons for keeping consumers mad at trial lawyers. These businesses know that government does not have the time or resources to hold them accountable for negligence; sometimes intentional; and so, they keep throwing gasoline on the fire of the propaganda created disdain for trial lawyers.

When I have the opportunity to give speeches or hear them given in connection with tort reform and tort law in general, the conversation usually finds itself leading to a discussion of medical negligence, medical malpractice. From there, depending on the group, we talk about doctors “fleeing” states; excessive malpractice premiums; and, inevitably, the “McDonald’s coffee case”.

What does it take to file a medical negligence lawsuit in “good faith”? To truly understand that, you must understand the elements the plaintiff is required to prove in any lawsuit:

• Negligence – someone acted improperly—a deviation from the acceptable standard of care.
• Causation—the someone’s improper action caused damages (in whole or in part)
• Damages – the injury flowing from the act of negligence

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St. Mary’s Hospital in West Palm Beach issued a statement relating to the wrong medication errors during the treatment of Tesome Sampson and her unborn child:

“On Sept. 4, 2008, a patient came to St. Mary’s in extremely premature labor. Due to a medication error, the patient was given medication to speed up her labor instead of medication that attempts to stop premature labor. Ultimately, the baby was born and suffered brain damage,” the statement said. “This was an unfortunate error that occurred despite the safeguards we have in place. . . . We apologized to the family for this deeply regrettable error.”

From all indications, this is the first time that St. Mary’s and its parent, Tenet Corporation, has acknowledges this error. Still, they characterize the error as almost normal negligence. They claim that their safeguards were in place and, presumably, they were appropriate. If that is the case, then they have a system in place, which permits colossal errors to occur without a system “catch” to cause someone to question, to investigate, and to stop a very serious error like this. In this case, a drug (Prostin) was administered to a pregnant woman. This is a drug that would never, never be given to a pregnant woman unless you wanted to force an abortion. This is not an oops sort of mistake, this is providing care you would almost never provide to this particular patient.

Hopefully, St. Mary’s risk management is approaching their system check with a more serious tone than their public explanation.

There is an old saying that if you have your health you have everything.  Anyone who has ever suffered a debilitating injury or lost a loved one to injury or disease knows this reality all too well.  We are also told by medical experts that an ounce of prevention is worth a pound of cure.  We are told to exercise, eat right, see a doctor for regular check-ups and indulge ourselves in life’s pleasures with moderation.

Regardless of our efforts to prevent injury and disease, inevitably we will require the services of a medical professional.  What is often overlooked is the important role of the patient in making sure the medical professional renders the very best of care.  This role is more important than we think.  For example, a 1999 study by the Institute of Medicine estimates that up to 98,000 people die in hospitals each year due to medical errors.  .  This exceeds the deaths from motor vehicle crashes, breast cancer and AIDS.

There was an excellent article on the CNN Health website advising patients to be proactive during a hospital stay to ensure that the very best care is received. The article suggests the following:

1.    Bring a list of the medications you are taking;
2.    Make sure the hospital gets your name right;
3.    Ask about every medication they give you;
4.    Make sure everyone washes their hands;
5.    If you think something’s wrong, don’t back down;

This is sage advice.  Many times, people admitted to a hospital feel helpless and confused and are hesitant to speak up when interacting with nurses and doctors.  We live in a culture that has for many years accepted the notion that what doctors say and do is not to be questioned.

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Is the phrase, a government “of the people, by the people, for the people” in the constitution? Popular belief is yes, but it is not actually in the constitution. Rather, this phrase comes from President Abraham Lincoln’s Gettysburg address. It is probably a concept that should have been incorporated into the constitution and certainly Lincoln included it to remind citizens that it is their country. I think politicians, and even some of us, forget that it is OUR government and the politicians are OUR employees; they are supposed to be working in OUR best interests.

Business interests are fond of complaining about the jury system and regularly claim that it is “broken”, it needs to be “fixed”. Perhaps the best word is, in fact, “fixed”; they would like to fix the civil justice system so that it can be better influenced in their direction. Should we hold it against them because they work to achieve an unfair playing field? We should not hate Big Corporations for this, but should we allow them to achieve it? Absolutely not!

I think the jury system our founding fathers borrowed from English common law works just fine in protecting the rights of individual citizens. Frankly, I want six of my fellow citizens sitting and listening to evidence in my case. I want six regular people considering what makes sense and what does not make sense. I do not want a special panel appointed to hear my case, as has been promoted by many business “political parrots”. I do not want the government inserting itself into the civil justice system anymore than they already do. I trust an impartial panel of my fellow citizens to fairly weigh the evidence and reach a decision that makes sense.

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There are few things we as people endure that are worse than losing a member of our family. The sense of loss, hurt, and anguish, however, is only magnified when a family member’s death was due to the negligence of someone else. What all-too-often causes even more heartache is the surviving family member’s discovery that the loss they have endured may not be recognized, i.e. compensable, under Florida law. Many people who have lost close family members as a result of the negligence of someone else have been surprised to learn that Florida law only allows for a financial recovery on behalf of certain surviving family members.

In Florida, the recovery of money damages by the surviving relatives for the death of a family member as the result of the negligence of another party is governed by Florida’s Wrongful Death Act (”Act”). According to the Act, the recovery of money damages is limited to the “survivors” of the deceased family member. The Act offers what would seem to be a fairly straightforward definition of who will constitute a deceased family member’s “survivors.” The Act defines survivors, in part, as “the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters.” Although the identification of a decedent’s survivors is ordinarily an easy enough task, it is critical for the lawyer representing the bereaved family to have a firm understanding of the relationship between family law principles and the Wrongful Death Act.

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The short answer is no, most are not hard hearted people. Most are, however, people who have not had significant tragedy enter their life and have lived a reasonably content life. By significant tragedy I am not talking about Aunt Jane passing away from old age or even the loss of someone’s parents. When I use the term tragedy in this context, I mean a significant, life altering, misfortune has happened to them that is typically not experienced by most people.

I have been in the insurance industry, worked for defense lawyers and worked for plaintiff attorneys. I was a Republican before the party deformed itself and I even campaigned for Richard Nixon (OK, I am sorry). My opinions and feelings about tort reform measures have never wavered; I can not spend enough energy opposing any action that hinders the justice system. Yeah, that’s right, I said it, the justice system; a term that is anathema to some. Tort reformers claim that the court system does not mete out justice. The framers never promised that the court system would render justice and anyone who believes otherwise is simply living in Disneyland. What our court system does promise is a “chance”, an “opportunity” to pursue justice. From my experience, most of the time, the system delivers justice; sometimes for all the wrong reasons, but it still delivers justice more often than not.

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News of the bridge collapse in Minneapolis and the mine failures in Utah are just the most recent reminders that issues of safety and accountability affect us all. Corporations with a profit motive have often and consistently acted like those profits were more important than the lives of the people we love. This has played itself out in an ominous fashion over the past 10 years as we’ve seen a coordinated effort by corporate interests to limit, or in some cases eliminate, your individual right to a jury trial. During that time those same corporations have made no effort to limit their own access to the courts.

Recently we’ve also seen the case of Melenna Del Valle who was killed in the interstate 90 tunnel collapse in Boston. In that matter the National Transportation Safety Board has just reported that the failure related to the design and materials utilized in the construction. The finding has brought forth a criminal indictment of at least one firm involved in the project. Unfortunately the criminal statute provides for only a $1,000 dollar penalty. I think most would agree that this is insufficient to inspire accountability or a change of heart on the part of a major corporation.

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