To many people, medical malpractice is a very esoteric area of the law. To some, it is that area of the law that is a means to enrich anyone whose doctor caused or could not cure a medical problem. To others, it is the area of law geared toward allowing doctors to be negligent but not legally responsible for their mistakes, no matter how egregious. The reality, however, is somewhere in between these two extreme views.

Nearly everyone has heard of a doctor being accused of “medical malpractice.” This term refers to the negligence of a doctor, dentist, or other medical practitioner in providing health-care services. Medical malpractice is a civil matter, meaning that the medical practitioner is sued by a patient in civil court in an effort to recover money to compensate for the injuries allegedly caused by the medical practitioner. Although there can be related criminal charges or proceedings to suspend or revoke the medical practitioner’s license, such is usually not the case.

The first task in determining whether a medical practitioner has committed malpractice is determining whether the practitioner has been negligent–that is, whether the practitioner’s delivery of medical services met or exceeded the standard of care to which medical practitioners are legally bound. Oklahoma law provides that a general medical practitioner should possess and exercise that degree of knowledge, skill, care and diligence that is possessed and exercised by practitioners in the same field of practice at the time the medical services are rendered, and that a medical practitioner is negligent if he failed to possess and exercise such knowledge, skill, care and diligence.

This standard of care makes it clear that a medical practitioner does not guarantee that the patient’s problem will be cured or that additional problems will not be caused by the practitioner’s treatment. Rather, it is an implicit recognition that science and medicine cannot cure all of the ailments of all people. Clearly, a bad result occurring after a medical practitioner’s does not, by itself, make a viable malpractice case.

For example, certain diseases are currently incurable, and a death from an incurable disease will result even though a medical practitioner exercises the utmost care, knowledge and skill in treating the patient. In such a case, the medical practitioner does not commit malpractice even though his patient dies.

Some doctors are (or at least hold themselves out to be) specialists in particular fields of medicine. For example, there are medical specialists in the fields of cardiology, orthopedic surgery, and neurology. Some, but not all, of the doctors who represent themselves as specialists are “board certified.” (Click here for links to websites where you can determine who is board certified and what that means). The law imposes a higher standard of care upon specialists; Oklahoma law provides that a physician who holds himself out as a specialist in a particular field of medicine owes to his patient the duty of possessing and using that degree of learning and skill ordinarily possessed and used by other specialists of good standing in the same special field under similar circumstances.

Thus, in light of the two standards of care, it is possible that a particular treatment by a general practitioner would be found to be at or above the applicable standard of care (as measured by the knowledge, skill, care and diligence of other general practitioners) because other general practitioners generally did not have the knowledge or skill to have obtained a good result, while the same treatment by a specialist could be found to be below the applicable standard of care (as measured by the knowledge, skill, care and diligence of other specialists) because other specialists generally did have the knowledge and skill to have obtained a good result.

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