How is the Standard of Care for a Doctor Decided?

Author: Sheila Baker

Guest Editor: Grace Shuman

Related Articles: California, Medical Malpractice, Expert Witnesses, Standard of Care

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December 3, 2021 9:00am


The central issue in any medical malpractice case is whether the medical provider breached the applicable standard of care.[i]  The California state appeals court recently clarified the standard of care for a physician in an unpublished case.[ii]  Generally speaking, the medical standard of care is defined as the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.[iii]  The standard of care is only proven by expert testimony, unless the circumstances are such that the required conduct is within the layperson’s common knowledge.[iv]

Under the standard of care, the courts require the medical provider to exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.[v]  In Valderrama, the state appeals court explained the standard of care for a doctor must be compared to that of a doctor, and not a nurse.

The Valderrama case involves a doctor who performed an abdominoplasty and liposuction on his patient in July 2016.  Four days after the surgery, the patient’s husband contacted the clinic where his wife had the procedure done because she was suffering from a fever and cough.  The doctor told the husband the symptoms were normal and there was no need for his wife to be examined before her scheduled appointment in two days.  Twelve hours later, the patient was rushed to the hospital, where she died of a pulmonary embolism.

At issue on appeal was whether the trial judge abused his discretion by excluding the testimony of a vocational nurse from the doctor’s clinic who testified that, per her training by the owner and medical director of the clinic, the patient was suffering symptoms that are signs of infection and a potential embolism.  Per the nurse’s training, based upon the symptoms, the nurse believed the patient should have been examined.[vi]  However, the appellate court found the trial judge did not abuse his discretion when forbidding nursing staff testimony.  The judge reasoned that the nursing training staff does not set the standard of care for a doctor.[vii]

The appellate court’s decision is in sync with developing standard of care principles.  The treating physician had the duty to use, under the circumstances involved, the same level of skill, prudence and diligence commonly possessed and exercised by plastic surgeons who perform surgeries such as abdominoplasties.  For purposes of malpractice law, a physician’s or surgeon’s standard of care is distinct from that of a nurse, and thus a nurse’s conduct or opinions are not the appropriate measure of a physician or surgeon’s standard of care.[viii]



In conducting discovery and percipient depositions, defense counsel should ensure the discovery conducted focuses on medical professionals with the same level of skill, prudence, and diligence as the medical professional defendant/client.  Similarly, defense counsel should retain expert(s) with the same qualifications as the medical professional defendant/client.  This will ensure there is no question as to whether the witness is qualified to testify about the standard of care.




[I] See CACI No. 502; Landeros v. Flood (1976) 17 Cal.3d 399, 408.
[ii] Valderrama v. Beautologie Cosmetic Surgery, Inc., 2021 WL 4272702.
[iii] David Goguen, J.D., What Is the “Medical Standard of Care” in a Medical Malpractice Case?, NOLO,
[iv] Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.
[v] Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1081.
[vi] Jonathan Capriel, Calif. Panel Preserves Doc’s Win in Fatal Plastic Surgery Suit, Law360, September 23, 2021, 7:28 PM EDT.
[vii] Jonathan Capriel, Calif. Panel Preserves Doc’s Win in Fatal Plastic Surgery Suit, Law360, September 23, 2021, 7:28 PM EDT.
[viii] Lattimore v. Dickey, supra, 239 Cal.App.4th at p. 969; Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 695; Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215; Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 150–151.

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