Choosing Malpractice: A New Narrative for Limiting Physician Liability
60 Pages Posted: 20 Sep 2017
Date Written: September 14, 2017
Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to contractually modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases – dealing with experimental medical treatment and Jehovah’s Witness blood refusals – lend support to the principle that patients who choose malpractice should be limited in their right to tort recovery.
Keywords: assumption of risk, contractual modification, waiver of liability, exculpatory clauses, experimental medical treatment, informed consent, Jehovah’s Witness, medical malpractice, patient autonomy, physician liability, fiduciary duty
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