Medical custom and medical ethics: Rethinking the standard of care

Cambridge Quarterly of Healthcare Ethics

Volumn 14, Issue 1, 2005, Pages 27-39

  Rich, Ben A ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EVALUATION; EVIDENCE BASED MEDICINE; HEALTH CARE DELIVERY; HUMAN; MEDICAL ETHICS; MEDICAL PRACTICE; PUBLIC HEALTH SERVICE; RACE; REVIEW; SEX RATIO; STANDARDIZATION;

EID: 13644259058     PISSN: 09631801     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0963180105050048     Document Type: Review

References (30)

1. Rich BA. Moral conundrums in the courtroom: Reflections on a decade in the culture of pain. Cambridge Quarterly of Healthcare Ethics 2000;11:180-90.
2. The technical legal term is "trier of fact," which is the judge in a bench trial and otherwise a jury. Because most medical malpractice cases are tried to a jury, I will use the term jury in place of the more cumbersome trier of fact. Any limitations on the role of the trier of fact apply with equal force to both judge and jury.
3. Texas and Pacific Railroad v. Behymer, 189 U.S. 468, 470 (1903).
4. The T.J. Hooper, 60 F. 2d 737, 740 (2d Cir. 1932).
5. This line of reasoning led to a once pervasive public policy known as the "corporate practice of medicine doctrine" that actually prohibited corporations and other business entities from engaging in the practice of medicine. One particularly scathing critique of the doctrine condemned it as "clouded with confused reasoning and founded on an astonishing series of logical fallacies." Hall MA. Institutional Control of Physician Behavior: Legal Barriers to Health Care Cost Containment. University of Pennsylvania Law Review 1988;137:518.
6. For what remains one of the most extensive and insightful explorations of the doctrine of informed consent by a physician, see Katz J. The Silent World of Doctor and Patient. New York: Free Press; 1984.
7. The dates selected are marked by two of the most often-cited appellate decisions at both (state and federal) levels: Salgo v. Leland Stanford, Jr. University Board of Trustees, et al., 317 P.2d 170 (1957) and Canterbury v. Spence, 464 F. 2d 776 (D.C. Cir. 1972).
8. Bing v. Thunig, 143 N.E. 2d 3 (1957). The curious reference to hospitals as mere "procurers" of physician and nurses to take care of patients appears to be a reference to the much earlier, and often-quoted decision by the famous jurist Benjamin Cardozo. In that case, Cardozo had found a surgeon liable for performing a particular surgical procedure on a patient over her previously expressed refusal. In doing so, however, Cardozo declined to hold liable the hospital where the procedure was performed in reliance on the doctrine of charitable immunity and the rationale that in the second decade of the 20th century hospitals did not provide patient care, but merely "procured" physicians and nurses to perform such care for their patients. Schloendorff v. Society of New York Hospital, 105 N.E. 92 (1914).
9. Despite the obvious parallels between healthcare institutions and managed care organizations, at least with regard to the extent to which their policies and procedures impact the quality and quantity of medical care provided to patients, until recently managed care organizations have been insulated from liability in situations in which healthcare institutions would not because of their ability to invoke the federal Employee Retirement Income Security Act of 1974 (ERISA). Because managed care is commonly a feature of employee benefit plans, and ERISA exempts such plans from most state regulation, managed care organizations have claimed that by virtue of ERISA they are exempted from state malpractice law. Over the last 10 years, managed care's ability to use ERISA as a shield has been seriously eroded by the courts. See Jordan KA. Tort liability for managed care: The weakening of ERISA's protective shield. Journal of Law, Medicine & Ethics 1997;25:160-79.
10. Toth v. Community Hospital at Glen Cove, 239 N.E. 2d 368, 373 (1968).
11. Darling v. Charleston Community Memorial Hospital, 211 N.E. 2d 253 (1965). The case involved a high school football player who was brought to the hospital after breaking his leg. Because of a series of negligent acts and omissions by the attending physician and the nursing staff, the patient ultimately had to undergo a below-the-knee amputation.
12. See note 11, Darling 1965:257.
13. Other early cases taking a similar position - that medical custom is relevant but not conclusive evidence of the standard of care - include Favalora v. Aetna Casualty & Surety Company, 144 So. 2d 544 (La. Ct. App. 1962) and Lundahl v. Rockford Mem'l Hosp. Ass'n, 235 N.E. 2d 671 (Ill. App. Ct. 1968). 2d 544 (La. App. 1962); Toth v. Community Hospital at Glen Cove, 239 N.E. 2d 363 (1968).
14. Helling v. Carey, 519 P. 2d 981 (1974).
15. Fortess EE, Kapp MB. Medical uncertainty, diagnostic testing, and legal liability. Law, Medicine & Health Care 1985;13:213-26.
16. Furrow BR, Greaney TL, Johnson SH, Jost TS, Schwartz RL, Health Law: Cases, Materials, and Problems, 3rd ed. St. Paul, MN: West Group; 2001:198-9.
17. Peters PG Jr. The quiet demise of deference to medical custom: Malpractice law at the millennium. Washington & Lee Law Review 2000;57:163-205.
18. United Blood Services v. Quintana, 827 P. 2d 509, 525-6 (Colo. 1992).
19. Nowatske v. Osterloh, 543 N.W. 2d 265, 271-2 (1996).
20. Hall v. Hilbun, 466 So. 2nd 856 (Miss. 1985).
21. Finder JM. The future of practice guidelines: Should they constitute conclusive evidence of the standard of care? Health Matrix: The Journal of Law-Medicine 2000;10:67-117.
22. Rich BA. Moral conundrums in the courtroom: Reflections on a decade in the culture of pain. Cambridge Quarterly of Healthcare Ethics 2002;11:180-90.
23. Rich BA. An ethical analysis of the barriers to effective pain management. Cambridge Quarterly of Healthcare Ethics 2000;9:54-70.
24. Mariner W. What recourse? Liability for managed care decisions under the Employee Retirement Income Security Act. New England Journal of Medicine 2000;343:592-6.
25. Emanuel EJ. Pain and symptom control: Patient rights and physician responsibilities. Hematology/ Oncology Clinics of North America 1996;10:41-56;
26. Bloomquist K. Older people in persistent pain: Nursing and paramedical staff perceptions and pain management. Journal of Advanced Nursing 2003;41:575-84.
27. Estate of Henry James v. Hillhaven Corp., 89 CVS 64 (S.C. Hertford Co., N.C., 1991); Bergman v. Eden Medical Center, et al., No. H205732-1 (Superior Court, Alameda Co, CA 2001).
28. Tomlinson v. Bayberry Care Center, et al., No. C 02-00120, Superior Court, Contra Costa Co, CA (2002).
29. Elder and Dependent Adult Civil Protection Act, CA Welfare and Institutions Code § 15600, et seq.
30. Andrews M. Making malpractice harder to prove. New York Times 2003;Dec 21:8.