Medical-legal implications of clean air systems
The question most frequently asked of me these days by orthopaedic surgeons is whether our courts would consider it negligence in a malpractice lawsuit for a surgeon to perform a total hip replacement operation without utilizing laminar flow air conditioning in the operating room. The answer is a complicated one requiring a basic understanding of the present state of the law as well as of medicine.
Malpractice is merely negligence on the part of a professional person in the conduct of his profession. Negligence is a breach of a duty owed. The duty owed by a surgeon to his patient is to use ordinary care:
“The duty is always the same—to conform to the legal standard of reasonable conduct in the light of the apparent risk.”
Supreme Court of Illinois quoting Dean Prosser on Torts, in the opinion of the Court in Darling v. Charleston Community Hospital (Sup. Ct. Ill. 1965), 33 Ill.2d 316, 211 N.E.2d 253; rehearing denied, cert. denied 383 U.S. 964.
How does the law determine what ordinary care requires in a given medical situation.
First, the ultimate answer to this question lies with courts and juries, not with the medical profession, for a whole profession may be negligent and it cannot set standards for itself below the requirements of ordinary care:
“Customary methods or conduct do not furnish a test * * * which is conclusive or controlling on the question of negligence or fix a standard by which negligence is to be gauged. . .