The Role of the Jury in Modern Malpractice Law

Abstract

The health care industry has changed fundamentally in the century that has passed since physicians were first delegated the unique power to establish their own legal standard of care. Consequently, it is not surprising that many courts are abandoning their deference to medical customs and, instead, are empowering juries, with the help of experts, to decide what a reasonable physician would have done under the circumstances. However, the prospect of a wide-spread retreat from the custom-based standard of care has fundamental policy implications. On the one hand, abandonment of the custom-based standard will improve the ability of courts to police the practices of physicians toiling in the shadow of managed care. On the other hand, it may demand more of lay jurors than we can reasonably expect of them. It may also threaten efforts to make health care more affordable. This Article explores the policy issues raised by the choice between a custom-based standard of care and a jury-determined reasonability standard. The author examines not only traditional legal arguments but also the recent findings of cognitive psychology, jury performance studies, and health industry research. Not surprisingly, this analysis reveals that both options are imperfect. However, the author cautiously recommends the reasonable physician standard. The revolutionary transformation of the health care industry in last quarter of a century has transferred considerable power from physicians to the health insurance industry, an industry that has not yet earned the privilege of self-regulation. Unlike the custom-based standard, the reasonable care standard assigns the task of standard-setting to representatives of the community and not to the regulated industry. And because the reasonable physician standard precludes unilateral establishment of the standard of care by the health care industry, it is also more likely to force the health care industry to engage the community in a conversation about health care cost and quality. For these reasons, it worth taking the risk that juries will be more resistant to cost control measures than health policy analysts would recommend.