The idiom “give with one hand and take away with the other” aptly describes aspects of the Supreme Court’s opinion in Estate of Corrado v Rieck. The Court held that a claim based on violation of a nursing home’s standing order is for medical malpractice but it fails as a matter of law. Then it held that standing orders can’t set the standard of care, but they’re still potentially admissible.
In Estate of Corrado, the Estate filed an action alleging that a nursing home and its employees didn’t adequately monitor and provide emergency care to the decedent. It moved to amend its complaint to allege that a nurse didn’t follow a standing order to immediately report to a physician when a patient vomits more than once. The parties disputed whether the standing order was admissible and whether a claim based on it was for medical malpractice or ordinary negligence.
The Supreme Court took the second question first. It declared the existence of a medical-malpractice claim and the immediate death of that claim. A claim based on violation of a standing order is for malpractice because formulating the order required medical judgment. Laymen don’t know whether or when a physician should be contacted if a patient with a feeding tube vomits. That requires medical judgment, which means that claim is for medical malpractice.
A claim based only on violation of a standing order necessarily fails because the order doesn’t establish the applicable standard of care. The Court drew on a century of precedent rejecting attempts to use a company’s internal rules and policies to establish breach of duty. It explained the policy behind the rule—it encourages companies, including medical institutions, to adopt higher standards to lessen public dangers.
The Court next held that internal rules or standing orders are potentially admissible “to help determine the standard of care …” The rules have to be relevant and otherwise admissible. And juries must be instructed that they don’t fix or set the standard of care. But they are not, the Court said, “categorically inadmissible.”