A duty of care is a legal obligation imposed on an individual requiring adherence to a standard of reasonable care while performing acts likely to harm others.  Duty of care is the first element that must be established to proceed with an action in negligence.

The existence of a duty of care exists because of the contractual relationship between a patient and a physician[i].  When the physician-patient relationship is established, the physician has the following duties[ii]:

• duty to possess the medical knowledge required of a reasonably competent medical practitioner engaged in the same specialty;
• duty to possess skills necessary for a reasonably competent health care practitioner engaged in the same specialty;
• duty to exercise care in the application of knowledge and skill expected of a reasonably competent physician; and
• duty to use the medical judgment in the exercise of that care required of a reasonably competent practitioner in the same medical specialty.

Moreover, physicians have an ethical duty to care for all patients who fall within the scope of their skill base.

A physician or surgeon is answerable for an injury to his/her patient resulting from want of the requisite knowledge and skill. An injury can also result from the omission to use reasonable care and diligence in the treatment of the patient or to exercise such care and diligence to discover the patient’s malady.

The standard of knowledge, skill, and the required care which the physician must possess and exercise must be reasonable and ordinary.  A physician must exercise reasonable and ordinary care, skill, and diligence as physicians and surgeons in similar neighborhoods and surroundings engaged in the same general line of practice ordinarily exercise in like cases[iii].

When a physician deviates from the applicable standard of care and the deviation causes injury to a patient, the physician is liable for damages caused by his/her medical negligence.  Negligence can exist in the diagnosis and in the treatment of patients.  A physician is expected to use the same degree of care in diagnosis and treatment[iv].  A breach of professional duties of skill and care, or their improper performance, by a physician or surgeon constitutes actionable malpractice.  The duty arises out of the contract between the physician and the patient, or from the obligation imposed by the consensual and fiduciary relationship.  For medical malpractice, a patient must be injured by the act or omission of the physician.

The following elements establish a medical malpractice case[v]:

• the physician owes the patient a duty of care;
• the physician was required to meet or exceed a certain standard of care to protect the patient from injury;
• the physician breached this duty or deviated from the applicable standard of care;
• the patient was injured; and
• the injury proximately resulted from the physician’s breach of the standard of care.

In medical treatment, a physician impliedly agrees with his/her patient that s/he possesses that reasonable degree of learning and skill in profession which is ordinarily possessed by other physicians under like conditions.  Additionally s/he agrees that s/he will use the best skill and judgment in diagnosing a patient’s disease or ailment.  A physician agrees to apply the best mode of treatment and that s/he will exercise reasonable care and diligence in the treatment of the case[vi].  Unlike an insurer, s/he does not warrant favorable results.  A physician possessing ordinary skill, using ordinary care, and applying best judgment is not liable for mistakes in judgment. A physician cannot be expected to know or be bound to diagnose correctly that which is unknowable.  A physician or surgeon is not liable for want of the highest degree of skill[vii].

The rules and standards governing the duty and liability of physicians and surgeons in the performance of professional services are applicable to practitioners of the kindred branches of the healing arts.  For example: chiropodists, dentists, practitioners of naturopathy, social workers, nurses, optometrists and opticians, psychiatrists, specialists, and operators of X-Ray machines.

[i] Oja v. Kin, 229 Mich. App. 184, 187 (Mich. Ct. App. 1998).

[ii] Nash v. Royster, 189 N.C. 408, 414 (N.C. 1925).

[iii] Van Sant’s Adm’r v. Overstreet, 261 Ky. 58, 63 (Ky. 1935).

[iv] Rees v. Roderiques, 101 Nev. 302, 304 (Nev. 1985).

[v] LaShure v. Felts, 40 Kan. App. 2d 1001, 1008-1009 (Kan. Ct. App. 2008).

[vi] Nickerson v. Gerrish, 114 Me. 354; 96 A. 235, 236.

[vii] Robert H. Josselyn v. Grant Dearborn and James Payson, 143 Me. 328, 337 (Me. 1948).