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

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with medical custom. Even more important than the raw numbers is the trend revealed by the decisions. The slow but steady judicial abandonment of deference to medical custom began in earnest in the 1970s, continued in the 1980s, and retained its vitality through the 1990s. Showing no signs of exhaustion, this movement could eventually become the majority position. Furthermore, many of the states that theoretically continue to defer to custom actually apply the custom-based standard of care in a way that operates very much like a reasonable physician standard. As a consequence, the malpractice law described in the hornbooks and taught in many Torts and Health Care Law classes only vaguely resembles malpractice law as it operates in many courts. This disassociation between the law in books and the law in action has gone, thus far, undetected. Yet, it gradually is reshaping the foundations of malpractice law. This article documents this ongoing transformation of the malpractice standard of care and explores its likely origins and implications.Part I of this article outlines the conventional understanding of medical malpractice law. Part II then describes the quiet movement away from custom that has occurred in the past few decades. Part III explores the possible reasons for this dramatic and fundamental revision of basic malpractice law, and Part IV outlines some of its implications