Standard of Care vs. Technical Deficiency

TASA ID: 864

When working for the defense as an expert witness, I have developed a strategy for dealing with wrongful death and personal injury issues.  Most of my work relates to matters involving health and human service programs. In these cases, Standard of Care and the organization's operational flaws usually play a significant role. 


During deposition and trial testimony, attorneys often ask me to define the Standard of Care. According to me, the Standard of Care is based on substantial compliance with some set of applicable external regulations or standards. Based on my education, training and experience, I have defined substantial compliance as the organization being in operational compliance with 85% of those regulations or standards. Meeting the Standard of Care does not require the organization or its employees to be perfect. This is an impossible and unrealistic expectation. I have managed a broad variety of health and human service agencies. While managing those organizations, I experienced a large number of surveys/inspections by state and federal survey teams. In each survey, non-compliance; a deficiency with regulations, was identified. However, we retained our license without penalty. In fact, there can be multiple organizational failures while maintaining compliance with the Standard of Care. Conversely, in unusual situations, one organizational failure, depending on acuity, may take the organization out of compliance with the Standard of Care.


As a part of my expert practice, I have seen opposing counsel (plaintiff) use organizational flaws, peripheral to the real issue, to suggest organizational incompetence which, in some ways, like changing water into wine, becomes proof of neglect, abuse or cause of death. For example: 

[1] I was involved in a wrongful death case. A young person admitted to a treatment facility, became ill, or became more ill, and died a few days after admission. As you might guess, this became a wrongful death case. Plaintiff counsel identified multiple individuals and organizational operational flaws; record keeping, staff training medication errors and so forth. None of those failures were connected in any way to cause of death. They were Technical Deficiencies.  In fact, the individual was seen by a physician the afternoon before his death. The physician did not deem his condition acute. The organization was “off the hook.”

[2] In a personal injury case involving therapeutic foster care, a young client was raped. Allegations of organizational neglect on the part of the supervising state agency and the facility were filed. The supervising case worker was in the home several times and completed a Quality Assurance Checklist each visit. I did simple math which showed the facility, on average, 88% compliant with licensing standards. The facilities performance met the Standard of Care. Additionally, plaintiff’s council identified a myriad of organizational flaws, none related to the rape = Technical Deficiencies.

[3] Recently, I was involved in a wrongful death case. In this matter, I offered opinions about physical control only. The person died while under physical control. Plaintiff’s counsel identified multiple organizational flaws which were embarrassing but not related to the cause of death as indicated by autopsy. The performance of the organization and its employees met the Standard of Care and the performance flaws were Technical Deficiencies.    

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