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The Quiet Demise of Deference to Custom: Malpractice Law at the Millennium

The Quiet Demise of Deference to Custom: Malpractice Law at the Millennium

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Member Since-29 Dec 2015

Conventional wisdom says that tort law gives physicians the ability to establish their standards of care. While in tort cases, defendants are expected to exercise reasonable care. Physicians have traditionally had to follow the advice of their peers. But, the judiciary is losing respect for physician customs. Slowly but surely, the legal privilege is being withdrawn by state courts. Twelve states have already rejected deference to medical conventions. Nine other states, while not directly addressing custom, have changed their standard of care to reflect the reasonable physician and not compliance with medical custom. The trend shown by the decisions is even more important than the numbers. In the 1970s, the gradual but steady abandonment by the judiciary of medical custom started. It continued into the 1980s and remained strong through the 1990s.

 This movement is not showing signs of exhaustion and could soon become the majority position. Many states that continue to defer the custom apply the custom-based standard in care in a manner that is very similar to a reasonable physician standard. The malpractice law that is described in the Hornbooks and taught in many Torts and Health Care Law courses only vaguely resembles the malpractice law as it applies in many courts. This disconnect between law in books and law in practice has been overlooked. It is slowly changing the foundations for malpractice law. This Article examines the likely causes and consequences of this transformation in the malpractice standard of care. Part I of this Article describes the current understanding of medical malpractice law. Part II describes the quiet retreat from a tradition that has taken place over the past decade. Part III examines the reasons for this fundamental and dramatic revision of basic malpractice laws, while Part IV discusses some of its implications. 

The defendant's compliance to custom in ordinary tort cases is admissible but not binding on a jury. Justice Holmes defended this rule by explaining that although evidence of what is done might be used to support the rule, what should be done is determined by reasonable prudence. This standard is applied regardless of whether or not it is followed. In The TJ Hooper, Judge Learned Hand observed that "a whole calling may not have been able to adopt new and more efficient devices." These sentiments are so widespread that there is no minority rule. 

Doctors and other professionals have been treated more favorably. The Prosser-Keaton hornbook explains that traditional tort law gives physicians, and sometimes other professionals, the right to set their legal standards of behavior, which is often denied to other groups. While doctors are expected to act reasonably, it is up to the physician's compliance with traditional practices that determine their reasonableness. The task of the jury in a case involving medical malpractice is altered by judicial deference to standard clinical practices. The relevant inquiry under a custom-based standard is not whether or not the defendant behaved reasonably, nor even whether she behaved like an honest physician. It is instead about whether the defendant adhered to customary practices. Therefore, the jury's inquiry will be positive and not normative. The jury decides, in theory at least. 

The jury does not determine what the customer should be. This normative judgment is assigned to the medical profession as a whole by law. This is because the question to be decided is not what doctors do but why they do it. Evidence of ineffective customary practices is sometimes excluded from evidence. 

This custom-based standard puts a hurdle in front of the malpractice plaintiff. Osborn was a case in which the plaintiff presented evidence that the defendant failed to comply with the recommendations and admonitions found in the professional literature. The court refused to allow the case to go before the jury without evidence that these recommendations were "actually the norm in the profession." The plaintiff cannot prevail if there is no evidence of deviation from the custom. 

This remarkable rule has led to a variety of secondary doctrines explaining or limiting its operation. These include: 

1. Expert testimony is required to inform the jury about standard clinical practices. 

2. The "two schools" or "respectable minority" rule precludes liability when doctors are divided between two or more respectable schools of thought and the defendant meets the tenets. 

3. The source of binding customary norms are determined by the locality rules which have been substantially relaxed. 

The respectable minority doctrine is the most important sub-malpractice rule for understanding the standard of care. This doctrine is commonly known as the "respectable minor rule" or "two schools rule". It allows physicians to freely choose between respectable schools without fear of liability. Pennsylvania's example shows that a physician is not liable for the treatment he has chosen if he follows a plan of care supported by credible, respectable, and reasonable medical professionals. Respectable minority rules arise from the unwillingness of judges to choose between conflicting schools and ideas when doctors themselves are unable to reach a consensus. 


The theory is that physicians are protected from liability when they follow established customs and when a respectable medical opinion has been divided. Plaintiffs cannot litigate the custom or the superior school of thought. One of the most quoted opinions states that surgeons and physicians should be allowed to exercise their discretion and judgment. A physician cannot be found guilty of negligence unless the course taken was contrary to the standard practice for physicians. The plaintiff must prove that the defendant's actions on the date in question were completely outside the norm. 

Slowly, the judiciary is losing respect for physicians' customs. Twelve states had refused to be bound by medical conventions as of 1999. While nine additional states did not expressly reject deference to custom they had decided to form the duty owed physicians in terms other than compliance with medical customs. The steady defection from the custom-based standard over the past few decades indicates that more states will follow. Many states that support a customary standard for care in principle don't seem to enforce it very strictly. These states allow plaintiffs to present their case to a jury, even if the experts state that the defendant's conduct was not acceptable or appropriate or does not meet the "standard" of care. These experts have not been required by law to prove that the defendant violated an established custom. It is misleading to claim that a malpractice plaintiff must prove that the defendant's doctor has not followed all established practices. It is much more complicated than that.