Chapter 4.B.1 --
Custom-Based Standard of Care
Because doctors practice defensively to avoid allegations of negligence, and because law holds doctors to general professional standards of practice, the custom standard can create a "feedback effect" that forces doctors to practice excessively, according to James Gibson, Doctrinal Feedback and (Un)reasonable Care, 94 Va. L. Rev. 1641 (2008). He cites electronic fetal heart monitoring as a prime example, and argues that even substantial doctrinal reforms will likely not fix the problem. Instead, the reasonable care negligence standard should be abandoned in favor of no-fault liability.
Historical evidence of the extreme judicial deference in the past to the medical profession comes from the following essay a century ago :
The successful physician seems to be looked on as the legitimate prey of those blackmailers whose extortion takes the form of malpractice and damage suits. Too often the court seems disposed to place the burden of proof on the physician, requiring him, the defendant, to prove his innocence rather than have the plaintiff prove the physician's guilt. It is a matter for satisfaction, therefore, to find a jurist who gives the medical profession its rightful due. In the case of a malpractice suit reported3 from Ohio, Judge Blair, after listening to the evidence of several local physicians, took the case from the jury and instructed a verdict for the defendant. The attorney for the plaintiff, in protesting against this action, said that it is impossible to make a case against a physician because the members of the medical profession are under obligations to endorse each other's statements. He intimated that medical men when testifying in damage suits presented an unequivocal denial of malpractice, regardless of the facts in the case. In his ruling Judge Blair stated that for years he had been a close observer of the members of the medical profession and as a class he had found them "possessed of every element of honor." In commenting on the fact that some of the best young men from his county had taken up medicine as a profession, he said that he believes they had not "lost any of their manhood or moral make-up" in so doing. Neither did he think for a moment that "any physician would perjure himself on the witness stand to shield another."
48 JAMA 1868 (1907), reprinted in 297 JAMA 2417 (2007).
Developing the interesting insight that there is a feedback loop inherent in the legal signals sent by enforcement of customary practice (in that custom drives law and law drives custom), see James Gibson, Doctrinal feedback and (un)reasonable care, 94 Va. L. Rev. 1641-1714 (2008).
Exploring whether the custom standard deters medical innovation, see Michael
D. Greenberg, Medical malpractice and new devices: defining an elusive
standard of care, 19 Health Matrix 423-445 (2009).
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