The Standard of Care for Medical Malpractice: What You Need to Know

Negligence is a very broad legal concept that encompasses a variety of acts that can cause injury to another person or party.


ByAnjelica Cappellino, J.D.


Updated on May 5, 2022


Professional negligence is a particular cause of action that involves a breach of the duty of care between professionals and their clients. A number of professionals can be held liable under this common law doctrine – such as lawyers, accountants, architects, and engineers – as there is no specific definition of “professional” in the context of a professional negligence claim. However, an overwhelming amount of professional negligence claims relate to the medical field.

A medical malpractice claim requires the plaintiff to prove, by a preponderance of the evidence, four elements: 1) that the defendant owed a duty of care to the plaintiff 2) that the defendant deviated from the applicable standard of care 3) the plaintiff suffered damages 4) the damages were directly caused by the defendant’s deviation. In order to successfully navigate a medical malpractice action, it is critical to understand the burden of the parties and the applicable standard of care.

What is the Standard of Care for a Medical Professional?

Professionals have a duty to exercise the level of care that a reasonably prudent person in their line of work would exercise. Naturally, the specifics of care depend upon the practice area. Medical malpractice is defined as “any act or omission by a physician during the treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury.” In other words, a plaintiff must show that the physician deviated from that of a reasonably prudent person in the same position. See Berger v. Becker, 272 A.D.2d 565, 566, 709 N.Y.S.2d 418 (2000).

Although most states generally agree on this definition, what constitutes the conduct of a “reasonably prudent person” can largely differ depending upon the facts and circumstances of the treatment.

There is no medical definition for “standard of care,” although its legal definition dates back centuries. As early as 1860, the Supreme Court of Illinois issued one of the first decisions (with then-attorney Abraham Lincoln representing the defendant) on what constitutes a physician’s standard of care, stating that “[w]hen a person assumes the profession of physician and surgeon, he must…be held to employ a reasonable amount of skill and care.” Richie v. West, 23 III. 329 (1860). Each state has compounded on this general definition, leading the standard to evolve in the modern era. In one particularly influential case, Hall v. Hilburn, 466 So. 2d 856 (Miss. 1985), Chief Justice C.J. Robertson of the Mississippi Supreme Court, drew a distinction between care free of any perceivable imperfections, and care that is legally sufficient:

Medical malpractice is a legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law. When a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care in the course of services he provides. A physician does not guarantee recovery… A competent physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an undesirable result.

Courts typically do not focus on the result, but rather, the methodology when evaluating whether a physician deviated from his professional standard of case. For example, in McCourt v Abernathy, 457 S.E.2d 603 (S.C. 1995), a physician was found to have acted below the requisite standard of care when he failed to treat the plaintiff’s finger infection which led to septicemia and her eventual death.

The Court was careful, however, to instruct the jury that: “Negligence may not be inferred from a bad result. Our law says that a physician is not an insurer of health, and a physician is not required to guarantee results. He undertakes only to meet the standard of skill possessed generally by others practicing in his field under similar circumstances.” Courts have also stressed that hindsight should not be used for evaluating the conduct and judgment of the physician at the time of treatment. See Johnston v. St. Francis Medical Center, Inc., No. 35, 236-CA, Oct. 31, 2001.

When evaluating the physician’s care, the challenged conduct must constitute “medical treatment or bear a substantial relationship to medical treatment rendered by a licensed physician.” See Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 788 (1996). In other words, “when the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but rather a hospital’s failure to fulfill a different duty, the claim sounds in negligence.” (i.e., failure to guard a plaintiff from another suicide attempt). See Dispenzieri v. Hillside Psychiatric Hosp., 724 N.Y.S.2d 203, 204 (2001).

State vs. Federal: Medical Malpractice Actions

Medical malpractice lawsuits are generally filed in state courts. However, federal court can have jurisdiction over the claim through two channels: 1) diversity of citizenship between the parties, i.e., the parties are from different states, or 2) the Federal Torts Claims Act. Under the Federal Torts Claim Act (FTCA), medical malpractice lawsuits can be filed against physicians working at medical facilities operated by the federal government, such as Veteran’s Administration facilities.

Even if filed in federal court, the standard of care and all other substantive issues are still determined by the applicable state law. However, federal law applies to procedural and evidentiary issues, which includes its own statute of limitations of two years from the time that the plaintiff discovered (or had reasonable opportunity to discover the injury). A notice of claim must also be served on the defendant federal agency prior to filing suit. Notably, punitive damages against the federal government are not allowed, even if the cause of action arises in a state that would otherwise permit punitive damages in a medical malpractice lawsuit.

How Can the Experts Help?

Experts in a medical malpractice action are not just useful in establishing the standard of care applicable to the defendant physician, but are also required to commence an action. Pursuant to New York law, all attorneys must consult with a physician prior to commencing a lawsuit (absent certain narrow exceptions). Rule 3012-a of the New York Civil Practice Law and Rules requires that all medical (as well as pediatric and dental) malpractice complaints be accompanied by a certificate of merit stating that the plaintiff’s attorney has consulted with at least one physician and has concluded that there is a reasonable basis for the commencement of the action. If the attorney is unable to obtain the consultation due to time constraints or after three separate good faith attempts to meet with three different physicians, the certificate of merit must state so.

Further, in order to succeed on a medical malpractice claim in any jurisdiction, a plaintiff must present expert testimony that the defendant’s conduct constituted a deviation from the requisite standard of care. To establish breach of this standard, expert witness testimony is almost always required because a jury cannot typically understand the complexities and scientific nature of the medical field. The potential experts needed to establish the legal standard is as broad as the number of existing medical specialties. As such, the types of medical experts needed will vary and be decided on a case-by-case basis.

About the author

Anjelica Cappellino, J.D.

Anjelica Cappellino, J.D.

Anjelica Cappellino, Esq., a New York Law School alumna and psychology graduate from St. John’s University, is an accomplished attorney at Meringolo & Associates, P.C. She specializes in federal criminal defense and civil litigation, with significant experience in high-profile cases across New York’s Southern and Eastern Districts. Her notable work includes involvement in complex cases such as United States v. Joseph Merlino, related to racketeering, and U.S. v. Jimmy Cournoyer, concerning drug trafficking and criminal enterprise.

Ms. Cappellino has effectively represented clients in sentencing preparations, often achieving reduced sentences. She has also actively participated in federal civil litigation, showcasing her diverse legal skill set. Her co-authored article in the Albany Law Review on the Federal Sentencing Guidelines underscores her deep understanding of federal sentencing and its legal nuances. Cappellino's expertise in both trial and litigation marks her as a proficient attorney in federal criminal and civil law.

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