A majority of individuals across most professions do not have a clear understanding of the Standard of Care. The first thing to understand is that the standard of care is a legal term. It is not a medical term. Only lawyers, not doctors, nurses, or midwives, should really use the term in their professional lives. 1 Most individuals misunderstand this legal concept. You may hear a provider or lay person say something like “electronic fetal monitoring is the standard of care” or breech deliveries at home without special training is “a violation of the standard of care”. The term is not meant to be used in these or similar circumstances. Unfortunately, its misuse in conversation has become a common jargon and may confuse healthcare providers and average consumers. In general, providers should only discuss the standard of care when testifying in court in medical malpractice cases or attending medical malpractice seminars.
The standard of care does not address specific entities, such as fetal monitoring, specific infant delivery techniques, or what our professional organizations expect of us as providers. Standard of care in the medical/legal world means only “the degree of care and skill of the average midwife, obstetrician, or labor nurse (or orthopedic surgeon, nurse-practitioner, anesthetist, etc.) who practices the provider’s specialty, taking into account the medical, nursing, or midwifery knowledge that is available to each of these care providers. Another way to describe SOC is that it is based on the “customary practices of the average provider, or what the average provider would customarily or typically do in similar circumstances.
To say that the standard of care derives from our specialty organizations, such as ACOG and ACNM, does not refer to specific skills or aspects of care. It refers only to a reasonableness standard, which is the general negligence standard. The midwife will be judged by the “customary practices of the average midwife. “What a reasonable and prudent certified nurse midwife would do in the same or similar circumstances. A further example: To say withholding childhood vaccinations is against the standard of care is faulty, but only from the perspective of semantics. What will be examined in the legal setting is: what is the degree of care and skill of the average pediatrician who practices pediatrics in the same or similar circumstances?
For providers, safe practices within their field of expertise are the standards that underpin practice, not care. These standards involve patient safety, knowledge, which is vital for safe practice, and familiarity with standards of practice, which guide midwives, doctors, and nurses in the delivery of competent, updated, and secure care. ACOG, ACNM, etc. do not speak to legal “standards of care”, these organizations speak to standards of practice. ACNM has crafted practice standards to serve as a foundation and guide for safe practice in each care setting, regardless of how diverse. Again, “standard of care” does not relate to specific actions. It is a general, legal definition. Judges and juries are the triers of fact, and they will define the standard of care at trial and whether the care rendered in the case was “reasonable and prudent.
Medical malpractice can result from various actions or failures to act; however, the primary cause is often negligence. In general, negligence means failing to exercise reasonable care or doing something wrong. Negligence is based on the “reasonable person” standard. If a reasonable person would have acted in a certain way, then the person who fails to perform the action would be negligent. In the alternative, if a reasonable person would not have performed a certain action, then doing that action would be negligence. In medical malpractice cases, some courts do not apply a reasonable person standard. 2
The so-called “reasonable person” in the law of negligence is a creation of legal fiction. Such a “person” is really an ideal, focusing on how a typical person, with ordinary prudence, would act in certain circumstances. The test for determining whether a person has acted as a reasonable person is objective and does not take into account the defendant's specific abilities. For instance, even a person with low intelligence or who is chronically careless is held to the same standard as a more careful person of higher intelligence.3
Again, a judge or jury decides whether a defendant acted as a reasonable person would have. When making this decision, the jury generally considers the defendant’s conduct in light of what the defendant actually knew, had experienced, or had perceived. But note that the defendant would only be liable for negligence if it were determined that he owed a duty to the plaintiff.4
With medical malpractice, courts can define negligence as a provider’s failure to exercise the proper standard of care. The concepts of negligence and the standard of care go hand in hand. Again, both legal terms, not medical ones.
1. What is the Medical Standard of Care? https:// www.alllaw.com/articles/nolo/medical-malpractice/standard-of-… 8/23/2016. All law.com
2. Ibid., page 2
3. Standards of Care and the “Reasonable Person”. Find Law page 1. http://injury.findlaw.com/accident-injury-law/standards-of-care-and-t…
4. Ibid. page 1.
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© 2025 Martha Merrill-Hall JD MS CNM