My son, also named Brewster, is an arborist and an owner of a local tree company. They do things like pull fallen trees off houses and take out dead trees. The work requires skill and judgment – and some very serious equipment. People can get hurt and property damaged. Brewster loves this work and he has built up a good business. I am very proud of him. In a funny way, I have come to realize that his business is actually a lot like mine, law practice. What he and his employees do requires both technical expertise and the ability to make judgment calls as to the best way to solve the problem at hand. In that regard, being a lawyer is very similar. We require expertise as to the applicable law and facts and, hopefully, we use that expertise to make good judgment calls and recommendations. Lawyers don’t get to use the cool machines like tree workers, however. (In that sense my son’s business is likely more fun than mine.) Brewster and I often discuss the frustrations of being a business owner/leader and we have shared a few good laughs about how two businesses so seemingly dissimilar have more in common than you might think.
As he frequently does, last week Brewster called me while I was on the road. Right off, I could tell that he was not having a good day. Indeed, he was not: While using a crane to remove a tree in an older part of town, his crew had dropped a large limb on a house causing significant damage. Over the next day or so we talked several times about the incident and how to deal with it. Brewster had evaluated what happened and concluded he really could not fault the worker involved. As he put it, he might have handled the removal the same way and could have caused the same damage. In other words, what his employee did was reasonable, not negligent, meaning the damage was just an unfortunate risk of the procedure. By contract, his company is, of course, responsible for the damage, but Brewster was smart to get good insurance and the property owner should be made whole. That, and the fact no one was hurt is the good news here.
Lawyers, and especially doctors, sometimes end up in similar positions. You do everything right, but you still end up with a disaster. Doctors use the term “complications” to describe this phenomenon and the risk of complications in medical treatments is very real. Prospective medical malpractice clients often come to us having suffered major injuries, or even the death of a loved one. However, when we dig into these cases, it’s not uncommon to find that you can’t fault what the healthcare providers did or did not do. What happened was likely just a complication, albeit sometimes a tragic one. That can be hard to explain when we have to turn down a case. But if we cannot prove that their doctor’s conduct was unreasonable under the circumstances, then there is no case for negligence (no matter how awful the injury might be).
Lawyers face similar situations, although ours are not typically so clear-cut. We make judgment calls constantly in our representation of clients. Sometimes these calls are about how a case should be handled and case strategy. Decisions are made as to who to sue and what theories to use. Sometimes we have options as to where to file a suit. Judgment calls are just that. When everything is over you can look back and sort out the “right” ones from those that did not turn out well. But if the judgment call was reasonable under the circumstances, then it shouldn’t be faulted after the fact even if things didn’t turn out well.
In malpractice cases this is what is meant when we discuss whether or not someone complied with the “standard of care.” That standard is what a reasonable practitioner would have done under the same or similar circumstances. The older cases often used the term “average” rather than reasonable, and in some ways that is a better way to describe it. The point is that it is not the best care one could possibly get, nor is the conduct judged by the outcome–however unfortunate it might be. You look at how a regular person doing a particular job – whether a doctor, lawyer, arborist or whatever – handles any given situation. That is the standard for judging what someone did or did not do. And, it is fair standard, indeed.
Back to the original topic about tree work. I remain certain that my son and his colleagues are careful practitioners of their craft. I am not just saying that. As I write this, he and his people are removing an old, very large and now dead Willow Oak from my back yard. Those limbs and that trunk could do major damage both to my house and our neighbor’s. I’m not worried.