American lawmakers and jurists are or soon will be confronted with a number of vital decisions affecting the professional liability of members of the healing arts. At issue is the continuing validity of the present system of fault based liability for medical malpractice, as well as the essential nature such a system should assume if it survives. Though often divorced, the two issues are inextricably wedded. The survival of the fault based system will assuredly depend in large measure on whether it can be made to work more efficiently and more consistently while meeting its espoused goal of loss redistribution based both upon the existence of a medical accident and upon an unacceptable quality of performance. The wholesale adoption of a no-fault scheme for medical accidents raises serious questions concerning its overall costs, definitional feasibility, egalitarian and distributive justice features, and basic fairness. These factors taken compositely militate strongly against a no-fault solution at this juncture. A social security type plan for financing health care needs poses fewer problems and would foster a more faithful administration of the fault system for those remaining economic losses by affording those stricken with misfortune a sure source of medical care outside of the fault based liability system. This would relieve some of the impetus behind suspect determinations of fault predominantly motivated by a desire to succor downtrodden plaintiffs. An essential step in any revitalization of the fault system for medical malpractice lies in a reappraisal of the standard of care. It is probably no exaggeration to say that the basic integrity of fault based medical malpractice law and of the medical profession itself depends upon the retention of a professionally developed standard of care. This standard ideally should be based upon accepted practice, emphasizing the reasonable expectations of the profession.
Joseph H. King, Jr.,
In Search of a Standard of Care for the Medical Profession: The "Accepted Practice" Formula,
28 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol28/iss6/2