The question is whether the nurse anesthetist exercised that degree of care which an ordinary nurse anesthetist would have exercised in similar circumstances. Expert testimony must be offered as to what the level of care is. This makes the trial of malpractice cases difficult and demanding. The trial lawyer must obtain testimony as to the standard of care, obtain and present evidence that the standard of care was breached by the anesthetist, and present the evidence to a jury in a manner which will be understandable and comprehensible. In many cases the issues are complex and difficult.
Patients react in different and unexpected ways to anesthetics.
Lawyers have, consequently, looked for ways to win malpractice cases without having to go through the difficulty of presenting them. The injury must occur under circumstances such that in the ordinary course of events the injury would not have occurred if someone had not been negligent. The injury must be caused by something within the exclusive control of the defendant. The injury must not have been due to any voluntary action or contribution on the part of the plaintiff. If these three conditions are met, the plaintiffs trial lawyer need not prove negligence at all.