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Med Mal 101: Back to Basics is 12-part series produced by Friday, Eldredge & Clark. Written by the attorneys in the Medical Malpractice Group, the content is designed to give physicians and other healthcare providers information they need to know about malpractice litigation.

What is “medical malpractice”? 

In Arkansas, all actions for medical injury are governed by the Arkansas Medical Malpractice Act. When a patient sues a medical care provider, the patient has the burden of burden of proving:

(1) the standard of care that was required of the medical care provider,

(2) that the provider failed to act in accordance with that standard, and

(3) that as a proximate result of a failure to act in accordance with that standard, the patient suffered injuries that would not otherwise have occurred.[1]

These elements almost always require expert testimony since they are not issues within the comprehension of a jury of laymen.[2]

All elements are required. If any element is lacking, the case should be dismissed. 

What is the “standard of care”?

The standard of care that applies to medical care providers is defined by statute as “the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality.”[3]

Under this definition, “usual and ordinary” knowledge and skill must be applied. Perfection is not required. Also, the law recognizes that care providers may have legitimate differences of opinion regarding a proper course of treatment. So long as the actions taken by a practitioner fall within the range of “usual and ordinary” practice, they are acceptable. “Ordinary” in this context is not the same as “majority.”[4]

What is “usual and ordinary,” however, may vary depending on the provider’s medical practice or specialty and also the community in which the care is provided. Accordingly, the law requires that a medical care provider be held to the standard of care of those in the “same type of practice or specialty” and in “the same or a similar community.”[5]

The Arkansas Supreme Court has held that under this rule, the standard of care is “that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community.” [6] “The similarity of communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages.”[6]

The same objective standard of care exists regarding informed consent. Under the law, a medical care provider must provide to a patient (or the person providing consent for the patient) information of the type that “would customarily have been given to a patient in the position of the injured person” by providers with similar training and experience at the time of the treatment, procedure, or surgery, and in the same or similar locality in which the medical care provider practices.[7] Informed consent, however, is not required in emergency situations.[7]

Next month, Part 4 of our series will discuss what constitutes a “breach” of the standard of care under the Arkansas Medical Malpractice Act.

Previous articles:

-Part 1: How a Lawsuit Gets Started

-Part 2: Responding to a Complaint

For a complete schedule of future articles, click here.