Determining the Standard of Care in Medical Malpractice: The Physician's Perspective

Abstract

We convened a focus group of thirteen physicians and seven attorneys with court experience in malpractice cases to better understand the physician's perspective on determining the standard of care. We emphasized the role of the physician expert witness and whether malpractice cases should be decided on the basis of a "reasonable" standard of care (what a reasonable physician would have done) or on the basis of a "customary" standard of care (what physicians would customarily or typically do in similar circumstances). The physicians in this focus group favored the customary standard, fearing that a reasonable standard could easily migrate toward the ideal. The Authors were troubled by the paradox implied by determining the standard of care based on custom in the absence of an adequate mechanism for assessing what is customary. However, the focus group favored the current system in which expert witnesses tend to assume that they would have done what most physicians would do.

Keywords: medical malpractice, standard of care

JEL Classification: K41