1. Overview
    • Because of the specialized skill and training needed to be a doctor, lawyer, accountant,
    • architect, or engineer, courts defer to the expertise of the profession to determine the
    • appropriate standard of care.

    In the professional negligence context, custom plays a different role than it does in typical negligence cases. In professional negligence the defendant's compliance with the custom of the profession is determinative, it insulates the defendant from negligence liability. Custom, then, establishes the standard of care.

    • In addition, because of the complexity of the issues involved, expert witnesses are usually
    • necessary for the plaintiff to establish the standard of care and to help determine if the
    • defendant deviated from that standard.
  2. Medical Malpractice
    • The standard of care to which physicians are held is set by the custom of their profession.
    • The physician must possess and use the knowledge and skill common to members of the
    • profession in good standing.

    • This standard demands of the physician minimal competence. In the medical malpractice context, liability flows from the physician's failure to conform to the profession's customary practice.
    • Conversely, if the defendant doctor adheres to customary practice, she cannot be found to have committed malpractice.
  3. Alternative Approaches to the Practice of Medicine
    • As long as one of the accepted approaches is followed, a doctor is protected from
    • malpractice liability. Further, the relative merits of each approach are irrelevant provided
    • there is an established custom supporting the method employed. Sometimes what
    • constitutes an acceptable method is debatable.
  4. Proof Issues in Medical Malpractice
    • Plaintiff must show more than an unwanted result. Nor is the coming about of an
    • inherent risk proof of malpractice. Plaintiff must show that the defendant doctor's
    • deviation from customary practice caused plaintiff's injury.
  5. Expert Witnesses
    • Because of the technical nature of most medical malpractice cases, a plaintiff typically will need qualified expert witnesses to help establish the appropriate standard of care and the defendant's breach of duty.
    • The expert must delineate the relevant medical custom of other competent doctors in the relevant medical community. The plaintiff's expert must be familiar with the custom applicable to the defendant's practice although the expert need not practice exactly the same type of medicine as the defendant to testify.
    • The admissibility of expert testimony also depends upon the community in which the defendant practices medicine. The relevant professional custom may differ depending on whether it is drawn from a local, statewide or national practice.
    • The trend is to hold specialists to a national standard and general practitioners to a same or similar locality standard. This “same or similar locality” standard protects defendants from being required to practice in a manner of which they are incapable due to geographic limitations, while expanding the potential pool of experts. It does, however, generate debate about what constitutes a “similar” locality, and can be criticized on the ground that it perpetuates substandard medical practice if the custom in similar localities is also inadequate.
    • Yet, there has been some concern that a national standard of care fails to account adequately for differences in resources available to rural and urban doctors.
  6. The Common Knowledge Exception and Res Ipsa Loquitur
    • Experts are not required in medical malpractice cases where the negligence of the
    • physician is so egregious that laypersons are able to determine breach themselves. Also,
    • res ipsa loquitur may be used in malpractice cases that do not fall within the “common
    • knowledge” exception. In these cases, the plaintiff will usually need expert testimony to
    • help establish that the harm she suffered does not ordinarily occur in the absence of the
    • lack of due care.
  7. Res Ipsa Loquitur Test
    A method for determining whether a defendant has gone beyond preparation and has actually committed an attempt, based on whether the defendant's act itself would have indicated to an observer what the defendant intended to do.
  8. Informed Consent
    • A second basis for medical malpractice liability is predicated upon a physician's failure to
    • provide information to the patient. Here, liability arises from the defendant's failure to
    • obtain the plaintiff's informed consent.
  9. Battery
    • Initially, informed consent actions gave rise to an intentional tort action for battery.
    • Although most informed consent cases now are based on negligence, where a physician
    • performs a substantially different procedure from that to which the plaintiff-patient
    • agreed or where the doctor significantly exceeds the scope of the plaintiff-patient's
    • consent, a battery action will be the likely cause of action.
  10. Negligence
    • The typical negligence-based informed consent case occurs where an undisclosed
    • complication with a medical procedure or treatment arises.
    • Many jurisdictions treat a
    • negligence-based informed consent claim as a species of medical malpractice, using the
    • professional standard of care set by custom (the “physician rule”).
    • Other states have determined that the particular interests involved mandate that informed consent cases be treated as distinct from typical medical malpractice treatment, leading to the adoption of a
    • rule requiring the disclosure of all material information (the “patient rule”).
  11. The Professional Rule
    • Under the professional rule, informed consent cases are treated like other medical
    • malpractice actions. Liability is based on the physician's nondisclosure of a risk of a
    • given procedure or treatment that would customarily be divulged by doctors in good
    • standing in the relevant community.
  12. The Patient Rule
    • Many jurisdictions have replaced the “professional rule” with a “patient rule,” under
    • which a physician is obligated to disclose to a patient all material risks involved in a
    • given procedure or treatment.
    • Although the standard of materiality is rather imprecise, it depends largely on the gravity and probability of the potential harm. Under the patient rule, the plaintiff can prevail without expert testimony, because lay persons are able to determine what is material.
    • The standard of materiality is primarily an objective one, focusing on what information would be material to a reasonable person deciding whether to undergo a certain procedure. But a patient seemingly has the ability to make a matter material by expressing her concern to her physician. Causation remains a big hurdle for the plaintiff.

    • Depending on the jurisdiction a patient/plaintiff must show either that had there been a proper disclosure, she would have refused to undergo the procedure (a subjective focus) or that a reasonable person would have rejected the procedure had there been a proper disclosure (an objective focus). Even in jurisdictions employing the “patient rule,” there are recognized exceptions to the obligation to disclose material risks.
    • A physician will not be liable where the nondisclosure of a material risk was justified due
    • to an emergency or where the patient requests that the doctor not inform her. Many states
    • also recognize a therapeutic privilege under which a physician may justify nondisclosure
    • upon proof that disclosure of information would be harmful to the patient's physical orpsychological well-being.
  13. Extensions of the Informed Consent Doctrine
    • Some courts have expanded the informed consent obligation to require disclosure of risks
    • of forgoing a medical procedure or treatment.
  14. Attorney Malpractice
    • Like other forms of professional negligence, the custom of the legal profession sets the
    • standard of care in a legal malpractice case and breach of duty is shown by the attorney's
    • failure to meet that standard of care. Further, unless the alleged attorney malpractice is
    • glaringly apparent, the plaintiff can only prevail with expert testimony regarding both the
    • standard of care and breach.

    Cause-in-fact is a huge hurdle in many attorney malpractice actions as the plaintiff must show that, had there been no malpractice, he would probably have prevailed in the underlying action. In essence, the legal malpractice action requires the resolution of two conflicts: the initial lawsuit and the malpractice action)in essence, a trial within a trial.
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