"Standard of care" is the measure against which negligence is determined. Negligence, as we know, is the failure to do an act that a reasonable person would do or doing something that a reasonable person would not do. The question is, what is reasonable?
In cases involving day-to-day life experiences, juries can measure "reasonableness" by their common experience. However, when the issue is the performance by a professional, that elevates the evidence required to a higher level.
Where negligence is alleged by a professional actor, the standard of care
requires testimony by an expert. The basis for this requirement is that the standard of
care for a given profession is beyond the purview of the everyday juror; it is beyond
our daily experience. It is not something with which we are engaged on a regular basis.
It is the context of the profession that requires insight by an expert knowledgeable of
the standard of care of the profession.
The most common application of this requirement is in medical malpractice cases; the professional standards for medical professionals are beyond the knowledge of normal jurors. Thus, it requires expert testimony. Similarly, standards for the performance by other professionals—attorneys, architects, engineers, etc.—are also the basis for the requirement of expert testimony.
As one case put it, the requirement of expert testimony in these instances is to educate the fact finders as to otherwise alien terminology and technology and, thus, preclude rendering a judgment on something they know nothing about. Whether the expert testimony is necessary to prove negligence depends on whether the fact finder can understand the nature of the standard of care required of the defendant and the alleged deviation from the standard without expert testimony.
Legal Standards Apply
The key is that, when a plaintiff is attempting to establish negligence on a departure from a reasonable standard of care in a profession that requires technical skill or training, expert testimony is required to establish such a departure. The evidence as to the standard can be based on legal standards. For example, laws or regulations may specify the requirements for a given profession to perform a certain act.
Further, the standard can be taken from the document of the professional or the entity for which they are employed. For example, professional associations can be the source of established standards that members of that profession must meet.
Additionally, standards set by the professional subject to the suit or their employer can be a measure of the standard of care. Their established operating procedures, guidelines, and internal requirements can be self-imposed, self-established standards. This makes sense: "You say this is what you should do, thus, it is a standard to which you will be held."
Standard of Care in the Courtroom
The more amorphous determination of the standard of care comes from the expression of expert testimony. The plaintiff will engage an expert who will tell their years of experience and in-depth knowledge in the area and opine as to what a professional in their subject should or should not do in a given situation.
The weight of that expert's opinion is first the function of the knowledge and expertise of the expert. What is the basis they have to render such an opinion? Is it education, training, experience, or all of the above?
Further, does the opinion of the expert reflect the norms and reality of the profession? Is the so-called standard of care opined by that expert at the fringes or even beyond for this profession?
Normally, the defense's response is by countering the subjective opinion with a subjective opinion by an expert of their choosing. Their expert opines that, based on their years of experience in the given profession, the true standard of care is not that which is put forth by the plaintiff's expert. The result? A jury of individuals chosen from the public is not familiar with this profession's standard of care and must choose between two subjective opinions by battling experts.
Think about it: The need for expert opinion in this area is because it's beyond the purview of the normal citizen. Yet, the jurors are forced to weigh the competing contentions despite their own lack of knowledge of the profession. The contest then becomes one of dueling credentials and advocacy; it becomes a matter of persuasion, or perhaps sales, of a given perspective to the jury.
The result is often a function of the presentation skills of the given expert. An expert may be thin on reason and have minimal basis for their opinion, but their performance on the witness stand and their certitude overwhelm the jury to accept their opinion and find for their client.
Conclusion
We have the opportunity to change that narrative. We are coming
into an era where artificial intelligence (AI) can provide a basis for countering
the subjective opinion of a plaintiff with the objective data-driven perspective of
the defense. In contrast to relying on the so-called expert's statements, "I've done
this for years," and "My experience in the industry says that …," we can apply the
power of AI to analyze the true reality as to what the data and evidence reveal is
the real standard of care and what is actually done by a profession.
We can establish standards based on quantitative evidence applied with qualitative reasoning. This is counter to the subjective opinion of the plaintiff's expert. This flips the script from one of jurors having to decide between competing subjects of arguments regarding the standards of a profession with which they have no knowledge to one between an expert's expressions of belief versus data-driven reality.
The standard of care is often the fulcrum in a trial. It is the point at which the determination and outcome often pivot. By changing the narrative and moving the fulcrum from competing, subjective opinions to one driven by data powered by AI, we can move the meter and create a much more persuasive outcome.
"Standard of care" is the measure against which negligence is determined. Negligence, as we know, is the failure to do an act that a reasonable person would do or doing something that a reasonable person would not do. The question is, what is reasonable?
In cases involving day-to-day life experiences, juries can measure "reasonableness" by their common experience. However, when the issue is the performance by a professional, that elevates the evidence required to a higher level.
Where negligence is alleged by a professional actor, the standard of care requires testimony by an expert. The basis for this requirement is that the standard of care for a given profession is beyond the purview of the everyday juror; it is beyond our daily experience. It is not something with which we are engaged on a regular basis. It is the context of the profession that requires insight by an expert knowledgeable of the standard of care of the profession.
The most common application of this requirement is in medical malpractice cases; the professional standards for medical professionals are beyond the knowledge of normal jurors. Thus, it requires expert testimony. Similarly, standards for the performance by other professionals—attorneys, architects, engineers, etc.—are also the basis for the requirement of expert testimony.
As one case put it, the requirement of expert testimony in these instances is to educate the fact finders as to otherwise alien terminology and technology and, thus, preclude rendering a judgment on something they know nothing about. Whether the expert testimony is necessary to prove negligence depends on whether the fact finder can understand the nature of the standard of care required of the defendant and the alleged deviation from the standard without expert testimony.
Legal Standards Apply
The key is that, when a plaintiff is attempting to establish negligence on a departure from a reasonable standard of care in a profession that requires technical skill or training, expert testimony is required to establish such a departure. The evidence as to the standard can be based on legal standards. For example, laws or regulations may specify the requirements for a given profession to perform a certain act.
Further, the standard can be taken from the document of the professional or the entity for which they are employed. For example, professional associations can be the source of established standards that members of that profession must meet.
Additionally, standards set by the professional subject to the suit or their employer can be a measure of the standard of care. Their established operating procedures, guidelines, and internal requirements can be self-imposed, self-established standards. This makes sense: "You say this is what you should do, thus, it is a standard to which you will be held."
Standard of Care in the Courtroom
The more amorphous determination of the standard of care comes from the expression of expert testimony. The plaintiff will engage an expert who will tell their years of experience and in-depth knowledge in the area and opine as to what a professional in their subject should or should not do in a given situation.
The weight of that expert's opinion is first the function of the knowledge and expertise of the expert. What is the basis they have to render such an opinion? Is it education, training, experience, or all of the above?
Further, does the opinion of the expert reflect the norms and reality of the profession? Is the so-called standard of care opined by that expert at the fringes or even beyond for this profession?
Normally, the defense's response is by countering the subjective opinion with a subjective opinion by an expert of their choosing. Their expert opines that, based on their years of experience in the given profession, the true standard of care is not that which is put forth by the plaintiff's expert. The result? A jury of individuals chosen from the public is not familiar with this profession's standard of care and must choose between two subjective opinions by battling experts.
Think about it: The need for expert opinion in this area is because it's beyond the purview of the normal citizen. Yet, the jurors are forced to weigh the competing contentions despite their own lack of knowledge of the profession. The contest then becomes one of dueling credentials and advocacy; it becomes a matter of persuasion, or perhaps sales, of a given perspective to the jury.
The result is often a function of the presentation skills of the given expert. An expert may be thin on reason and have minimal basis for their opinion, but their performance on the witness stand and their certitude overwhelm the jury to accept their opinion and find for their client.
Conclusion
We have the opportunity to change that narrative. We are coming into an era where artificial intelligence (AI) can provide a basis for countering the subjective opinion of a plaintiff with the objective data-driven perspective of the defense. In contrast to relying on the so-called expert's statements, "I've done this for years," and "My experience in the industry says that …," we can apply the power of AI to analyze the true reality as to what the data and evidence reveal is the real standard of care and what is actually done by a profession.
We can establish standards based on quantitative evidence applied with qualitative reasoning. This is counter to the subjective opinion of the plaintiff's expert. This flips the script from one of jurors having to decide between competing subjects of arguments regarding the standards of a profession with which they have no knowledge to one between an expert's expressions of belief versus data-driven reality.
The standard of care is often the fulcrum in a trial. It is the point at which the determination and outcome often pivot. By changing the narrative and moving the fulcrum from competing, subjective opinions to one driven by data powered by AI, we can move the meter and create a much more persuasive outcome.