Sarah K. Simon, Associate Member, University of Cincinnati Law Review
More than 1 in 3 doctors have been sued for medical malpractice. Not all doctors are sued equally: obstetrician-gynecologists and general surgeons are most likely to be sued whereas psychiatrists and pediatricians are the least likely. The top three medical malpractice claims are failure to diagnose, surgical errors, and medication mistakes. When a doctor is sued for medical malpractice, the plaintiff normally must establish the standard of care, then show that the doctor breached this standard. However, the standard that the doctor is held to depends on what state she practices in.
In medical malpractice lawsuits, there are two standards of care: the custom-based standard and the reasonable physician standard. Recently, there has been a trend away from the custom-based standard in favor of the reasonable physician standard. Parts II and III of this article will explain the two standards. Part IV argues that the custom-based standard of care is superior. Part V concludes with implications of the two standards.
II. Custom-Based Standard of Care
Under the custom-based standard of care, the jury decides if the defendant doctor complied with custom after hearing from the plaintiff’s experts and the defendant’s experts. Specifically, the jury must decide whether the doctor’s conduct was within the range of appropriate conduct in the medical field. The custom can vary further based on the locality rule, which controls whether the plaintiff’s expert witness can be from the same town, a similar town, the same state, or anywhere in the U.S. The majority of states follow the national standard for the locality rule, which allows the plaintiff’s experts to be from anywhere in the U.S.
In McCourt v. Abernathy, the South Carolina Supreme Court applied the custom-based standard of care. In McCourt, a 23-year-old woman who worked in a barn around horses, pricked her finger. She came into the hospital a few days later with chest pain and her finger almost double the normal size. At the hospital, board-certified family practitioner, Dr. Clyde, cleaned and dressed her finger wound, and treated her for a pulled chest muscle.
The woman came back to the hospital the next day and the emergency room physician ran blood tests on her, then asked her board-certified family practitioner, Dr. Abernathy, for permission to admit her. Dr. Abernathy looked at her finger and gave her an oral antibiotic for it. The next day, both Dr. Clyde and Dr. Abernathy examined the woman, then requested that a specialist see her. The specialist diagnosed her with sepsis, a life-threatening bacterial infection in the blood. Even though the woman was given IV antibiotics, she later died from organ failure due to sepsis. Both of the plaintiff’s expert physicians testified that Dr. Abernathy and Dr. Clyde acted below the standard of care from the start by failing to treat the finger with antibiotics, failing to order lab work and failing to monitor her closely. On appeal, the doctors questioned the standard of care that they were held against.
Affirming the lower court’s decision, the South Carolina Supreme Court reasoned that “Medicine is an inexact science…physicians may differ as to what constitutes a preferable course of treatment.” If two physicians differ on what the best treatment is, this is not malpractice. Doctors must satisfy the standard that other doctors in their field are held to. Here however, both of the plaintiff’s experts testified that the doctors were “profoundly below” any acceptable standard of care.” Therefore, the court held both doctors liable.
Similarly, in Palandjian v. Foster, the Massachusetts Supreme Court applied the custom-based standard of care when the decedent’s estate sued the decedent’s primary care doctor for failing to order an endoscopy that would have detected fatal gastric cancer. The plaintiffs argued that the doctor should have ordered the endoscopy since he knew the decedent’s family history of gastric cancer. The Court explained that, the standard of care is “that which is commonly possessed by “other physicians. Since the defendant proved he acted like the average practitioner at the time, when there were no scientific studies showing an increased risk of gastric cancer for patients with a (non-immediate) family history of gastric cancer, the court found for the doctor.
III. Reasonable Physician Standard of Care
Under the reasonable physician standard, the jury decides “whether the physician behaved reasonably, not whether she complied with custom.” Most states follow the reasonable physician standard of care, and more states are moving to this standard.
In Helling v. Carey, the Washington Supreme Court rejected the custom-based standard of care in favor of the reasonable physician standard. The plaintiff was a woman who saw Dr. Carey and Dr. Laughlin for her nearsightedness. At the time, the doctors gave her contacts. Four years later she returned after experiencing irritation she believed was caused by the contacts.. She came in an additional nine times within the following year for irritation and visual problems. On her ninth visit, she was tested for glaucoma and diagnosed with the condition at 32 years old. She sued the doctors, claiming their negligence caused her acute eye damage.
Both the plaintiff’s and the defendant’s experts testified that it was not custom to test for glaucoma in patients under 40 years old because of how rare the disease is for those under 40. The trial court found for the defendants. The Washington Supreme Court reversed, calling the case “unique.” The higher court reasoned that the custom-based standard had not given the plaintiff enough protection. Even though glaucoma was extremely rare for patients under 40, patients under 40 should still be afforded the same degree of protection by being screened for glaucoma. The test was cheap, quick, and effective; and, although it was not custom to administer the test to those under 40, the court found that a reasonable doctor would give the test to all patients. The court held the doctors liable for their negligence in failing to administer the glaucoma test to the patient.
Similarly, in Jordan v. Bogner, the Colorado Supreme Court applied the reasonable physician standard of care when a mother sued her doctor, arguing that the doctor’s decision to forgo a caesarean section caused her son’s brain damage and cerebral palsy. The court found that the trial court gave incorrect jury instructions on the proper standard of care that the doctor should be held to and remanded the case. The correct standard was “what a reasonable physician certified in that specialty would or would not do under the same or similar circumstances.”
The custom-based standard of care is superior to the reasonable physician standard of care for four reasons. First, the reasonable physician standard is inferior because overlooks how much the medical profession regulates itself and allows courts to unnecessarily regulate the medical profession by determining if the physician acted reasonably. After high school, doctors spend 10 to 14 years in school to become licensed. Medical school acceptance rates range from 2.2% at the most selective schools to 27% at the least selective schools. During and after medical school, doctors must prepare for and take a three-step standardized exam to become licensed in the U.S. Once a doctor begins practicing, she must complete Continuing Medical Education requirements each year to stay informed and maintain her medical license through the state’s medical board. State medical boards further monitor doctors through investigating complaints, disciplining conduct, and revoking medical licenses. Similar to the legal profession, doctors generally regulate and supervise themselves. However, the reasonable physician standard allows courts to overregulate a profession that already has sufficient oversight.
Second, the custom-based standard of care is superior because it grants juries the proper amount of power. Under both the custom-based and reasonable physician standards, the jury decides how much to award the plaintiff in punitive damages. This allows juries to assure the plaintiff is compensated fairly. However, the reasonable physician standard also gives juries the authority to decide if the physician acted reasonably. What is reasonable in one case may not be reasonable in another. This vague standard of “reasonableness” depends on the unique circumstances of individual cases and is difficult to understand, which sets unreliable precedent for doctors. The custom-based standard of care prevents inconsistent precedent by only requiring the jury to decide if the doctor complied with custom.
Third, the custom-based standard is more appropriate because customary practices of modern medicine have advanced. In Helling v. Carey, the patient visited the ophthalmologist in 1963, then again in 1967. The case is almost seven decades old. The medical field has made incredible advances. Now, a court would be hard pressed to find a cheap, simple, and effective test that doctors should administer because of the prevalence of routine preventative screenings. The courts are also not up to date on the latest medical advances, and most have full dockets. Judges are not equipped to keep up with the latest practices, nor should they be expected to. In 2021, the medical field is best suited to regulate itself through the custom-based standard of care.
Lastly, subjecting doctors to the vague reasonable physician standard could deter future doctors from entering the field or pressure older doctors to retire. By 2033, the United States will have “a shortage of between 54,100 and 139,000 physicians.” Encouraging medical malpractice suits by using the reasonable physician standard could exacerbate this inevitable shortage.
In medical malpractice suits, doctors should be held to the custom-based standard of care instead of the reasonable physician standard of care. The custom-based standard of care is best suited for the self-regulated medical profession and grants juries an appropriate amount of power without creating vague and unreliable precedent for medical malpractice suits. The reasonable physician standard overlooks the innovations of modern medicine and could dissuade doctors from joining a field that will desperately need them in the future.
 Kevin B. O’Reilly, 1 In 3 Physicians Has Been Sued; By Age 55, 1 in 2 Hit with Suit, Am. Med. Ass’n (Jan. 26, 2018), https://www.ama-assn.org/practice-management/sustainability/1-3-physicians-has-been-sued-age-55-1-2-hit-suit.
 National Trial Law, Medical Malpractice Statistics and Facts, Nat’l Trial Law (2020), https://nationaltriallaw.com/medical-malpractice-statistics/.
 Anjelica Cappellino, The Standard of Care for Medical Malpractice: What You Need to Know, Expert Inst. (June 23, 2020), https://www.expertinstitute.com/resources/insights/standard-care-medical-malpractice-need-know/.
 This article assumes that the plaintiff and the defendant reside in the same state and that the state courts have jurisdiction.
 Philip G. Peters Jr., The Quiet Demise of Deference to Custom: Malpractice Law at the Millennium, Wash. & Lee L. Rev. 163, 164 (2000).
 Id. at 165.
 Michelle Huckaby Lewis, et al., The Locality Rule and the Physician’s Dilemma, 297 J. Am. Med. Ass’n 2633, 2635 (2007).
 Id. at 2634.
 McCourt By & Through McCourt v. Abernathy, 318 S.C. 301, 307 (1995).
 Id. at 303.
 Id. at 304.
 Id. at 306.
 Id. at 307.
 Id. at 305.
 Id. at 308.
 Palandjian v. Foster, 446 Mass. 100, 104 (2006).
 Id. at 112.
 Id. at 105.
 Id. at 112.
 Philip G. Peters Jr., The Role of the Jury in Modern Malpractice Law, 87 Iowa L. Rev. 909, 915-916 (2002).
 Leo Clark, Customary Bad Practice Not Standard of Care, Surgical Neurology Int’l (Oct. 4, 2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6800290/.
 Helling v. Carey, 83 Wash. 2d 514, 519 (1974).
 Id. at 515.
 Id. at 516.
 Id. at 517.
 Id. at 518.
 Id. at 519.
 Jordan v. Bogner, 844 P.2d 664, 665 (Colo. 1993).
 Id. at 668.
 Id. at 667.
 How Long Does it Take to Become a Doctor?, Indeed (Jan. 7, 2021), https://www.indeed.com/career-advice/finding-a-job/how-long-does-it-take-to-become-a-doctor#:~:text=Doctors%20must%20complete%20a%20four,become%20a%20fully%20licensed%20doctor.
 MCAT, GPA, and Medical School Acceptance Rates: The Med School Selectivity Index, Accepted (2021), https://www.accepted.com/medical/med-selectivity-index.
 Valarie Blake, Home or Hospital: Your Medical Board is Watching, American Med. Ass’n J. of Ethics (Oct. 2011), https://journalofethics.ama-assn.org/article/home-or-hospital-your-medical-board-watching/2011-10.
 Peters, supra note 31.
 Peters, supra note 6, at 165.
 Patrick Boyle, U.S. Physician Shortage Growing, Ass’n of American Med. Cs. (June 26, 2020), https://www.aamc.org/news-insights/us-physician-shortage-growing.