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Medical Malpractice in Tort Law: Ordinary Negligence and Recklessness

Medical malpractice cases that involve recklessness are usually straightforward. Ordinary negligence, however, can be more difficult to prove and resolve. Professor Richard Epstein explains that the traditional standard in these cases was simply to verify if the medical practitioner was qualified and practicing in accordance with customary precautions. The more modern approach to these negligence cases is to perform a cost-benefit analysis which is much more complicated and costly, and often without a clear resolution. https://youtube.com/watch?v=z32zKAdMT4c


Almost everybody agrees that deliberate harm by a surgeon is utterly intolerable and will be held liable, and the question then is what happens when there's some form of culpability which is less than deliberate harm: either ordinarily negligence or recklessness. The recklessness case is generally regarded as pretty clear and the defendant will be held liable if he's utterly indifferent to the health and welfare of his patient. Nobody would ever accept surgery, if they knew that the doctor could be cavalier in the way in which he or she was treated. The ordinary negligence case is much more complicated, because everything depends on what the standard of care is. There are two candidates here. The first candidate is you do this in accordance with the custom of the trade. And that was the traditional standard for a great deal of time. The logic was that the plaintiff can certainly expect that the defendant does what other people in the business does, and the defendant is perfectly willing to undertake an obligation which by virtue of the fact that is constantly imposed means that it's not impossible for him to discharge. And what happens thereafter is, if you have somebody who is sufficiently trained to do the work, knowing that that person has to be held to the responsible level of a customary standard of care, he'll just decline the service and you'll go to somebody else. The second version is to say what we do is a cost-benefit analysis to see whether or not the physician, all things considered, exercised the optimal level of care. The shift between these two systems is absolutely critical. Under a customary system you'd have a frame of reference which is pretty easy to resolve and so cases will be expeditiously decided. When you decide to say it's just an open ended cost-benefit analysis, the plaintiff can always refer to an additional precaution that could have been taken, that wasn't taken, the defendant will then try to say that it's too costly or creates complicated situations. And what you have to do is to try, at a cost of a trial, after an injury, to reconstruct what was rational conduct before him. My own view, is that this particular approach, though common today, it's extremely costly to do and can be extremely unreliable when you do it, and see largely disruptive of the contractual arrangements, because owing to the high potential for liability under this so called cost-benefit situation, you will start to see physicians in hospitals declining services.

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