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D.P. v. Wrangell General Hospital5/19/2000
only conclusion to be drawn from these definitions is that sections 09.55.540 and .550 must apply to a broad range of actions taken in the provision of medical services. These services comfortably include the supervision of psychiatric patients in a hospital.
Similarly, the common definition of "malpractice" is:
Professional misconduct or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers, and accountants. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury , loss or damage to the recipient of those services or to those entitled to rely upon them.
Given the broad definition commonly applied to "malpractice" and the similarly broad statutory definitions in our statutes on "medical malpractice," I cannot agree that D.P.'s claim is one of "ordinary negligence" and not one of "medical malpractice." Accordingly, to the degree that the court suggests that D.P.'s claim that she was entitled to "reasonable and attentive care, including, . . . adherence to physician's orders" was not a claim of medical malpractice, I cannot agree.
B. The Notion of "Ordinary Negligence" Is Not Applicable Within the Context of a Professional Negligence Action.
I also disagree with the court's conclusion that it is appropriate to allow a jury to resolve D.P.'s claim "under an ordinary negligence framework." Implicit in this conclusion is the view that the individual acts that in the aggregate comprise any given medical service may be finely parsed into those acts judged under the rubric of ordinary negligence and those acts judged under the rubric of professional negligence. California, with its similar statutory scheme for medical malpractice, has rejected this approach.
Moreover, the logic underlying the parsing approach to acts by health care providers is flawed because "ordinary negligence" is not applicable in a professional negligence case. The court relies on Meier v. Ross General Hospital, a California case, for the proposition that "ordinary negligence" can exist in a medical malpractice setting. But as the California Supreme Court recently explained in Flowers v. Torrance Memorial Hospital Medical Center,
whether the cause of action is denominated "ordinary" or "professional" negligence or both, ultimately only a single standard can obtain under any given set of facts and any distinction is immaterial . . . .
. . . defendant has only one duty, measured by one standard of care, under any given circumstances.
That court then went on to further explain that when courts allow seemingly obviously negligent acts to supplant the need for expert testimony to establish the appropriate standard of care, their "reasoning confuses the manner of proof by which negligence can or must be established and the character of the negligence itself."
The logic of Flowers and the cases that follow it is persuasive. There cannot be two standards of care that apply to one person for the same act at the same time -- one "professional" and one "ordinary."
The allegedly negligent act at issue in this case took place during the provision of professional medical services. In these circumstances, AS 09.55.540 requires proof of the applicable standard of care and proof of a breach of that standard of care. Because there was no expert testimony, the plaintiff's case was insufficient unless an exception to the rule could be found.
C. Reliance on the Common Knowledge Exception Is
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