Medical Malpractice: Should Courts Force Doctors to Confess Their Own Negligence to Their Patients?
Richard W. Bourne
University of Baltimore School of Law
Arkansas Law Review, Vol. 61, No. 4, 2009
University of Baltimore School of Law Legal Studies Research Paper No. 2009-24
This article argues that tort law should be developed to force physicians to confess known failures on their parts to render care to patients that meets the required standards of care of the profession in some material way.
Under current legal rules, there is no free-standing duty on physicians to tell their patients that the doctors breached the standard of ordinary care and prudence in treating them. Sometimes treats as knowing concealment refusal of doctors to come forward when their malfeasance causes a patient to suffer palpable harm (1) through loss of the chance to sue for redress of malpractice because the doctor had hidden the fact that she has been wronged until after the statute of limitations has passed, or (2) by foregoing undertaking in a timely way appropriate treatment options to redress mistakes the doctor had made because the the doctor not hidden her problem from her until it was too late to undertake the treatment options. But these rules do not affirmatively punish the doctors for failure to be forthcoming; all they do is take from him - in the few cases in which he gets caught - the ability to profit from his own wrongdoing. The incentive remains to lie, secrete, and obfuscate, and the result is ongoing lay distrust of the profession, heightened willingness to sue, and increasingly punitive verdicts in the cases that are brought.
This paper argues that the courts should make the failure to confess known negligence a tort, closely akin to knowing concealment or fraud, even if it does not lead to harm. Doctrinally, imposition of an affirmative duty to come forward is justified because of the fiduciary nature of the doctor-patient relationship. The need to disentangle the failure to disclose from palpable injury arises because the law needs a way to encourage a new tradition in medical practice that will lead to greater openness between doctor and patient. A professional person’s failure to be truthful about treatment errors is not a physical wrong; instead, the wrong goes to the whole process through which medical decisions are made and medical services are rendered.
Treating failure to be truthful about one’s own negligence as a free standing tort, breach of which would lead to nominal damages as well as punitive damages, is unlikely to cause an increase in malpractice actions or liability. Since the principal reasons for bringing malpractice actions have to do with issues of trust, not really simply ones of competence, a regime of truth telling would create rather than undermine trust and lessen the likelihood of suits. Even when revelation does occur, the issues will focus on the nature and extent of plaintiff’s injury rather than on the blameworthiness of the doctor. This fact will aid in facilitating settlement of lawsuits, thus cutting down on the time, expense, and intensity of malpractice litigation, and will tend to moderate whatever financial settlements are reached in the cases.
Number of Pages in PDF File: 53
Keywords: medical malpractice, courts, doctors, physicians, negligence, disclosure
JEL Classification: K19, K39, K32Accepted Paper Series
Date posted: May 5, 2009 ; Last revised: September 16, 2009
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