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Stratified Scarcity: Redefining the Standard of Care

Published online by Cambridge University Press:  29 April 2021

E. Haavi Morreim
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Extract

Professor Hall is to be congratulated on his thoughtful analysis of an issue that, as he rightly suggests, “is one of the most important issues that will confront health care tort law throughout the remainder of the century.”’ He argues that malpractice law currently can accommodate considerable latitude both for a conservative streamlining of medical practices in general and for a cost-sensitivity in individual treatment decisions. And he further argues that existing tort principles, such as the locality rule, can comfortably be stretched to embrace still greater room for economics in the medical standard of care. I quite agree.

Unfortunately, Hall's arguments do not go nearly far enough, for they are framed around a seriously oversimplified picture of the economic changes that are revolutionizing medicine in the United States. He envisions a fairly uniform, global set of resource constraints that generally pressure physicians to conserve on care—pressures that tort law can then encompass equally globally as it accepts more cost-efficient standards of care. However, neither the changing economics of medicine nor the resulting jurisprudential challenges are anywhere near this generalized.

Type
Article
Information
Law, Medicine and Healthcare , Volume 17 , Issue 4 , Winter 1989 , pp. 356 - 367
Copyright
Copyright © American Society of Law, Medicine and Ethics 1989

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References

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Morreim, E.H., “Cost Containment and the Standard of Medical Care,” 75 Cal L Rev: 1719, at 1759 (hereafter, “CLR”). Hall errs in stating that the locality rule arose in deference to economic constraints such as resource limits and funding restrictions (Hall, 349–50). A closer review of medical history reveals that in the late 19th century when the locality doctrine was first articulated, (Small v. Howard 128 Mass. 131 (1880); Teft v. Wilcox 6 Kan. 46 (1870)) the differences between rural and urban physicians had little to do with money. Rather, slow and inadequate communication precluded the rural physician from learning as much or as quickly about the latest developments in medical practice, and a paucity of patients meant that he had fewer opportunities to keep his skills sharp. The lack of resources and facilities did not become a factor until much later, when medicine actually developed technologies that made a difference in patients' outcomes. Thus, recent modifications in the locality rule first began by acknowledging that improved communication and standardized education have largely erased earlier differences in skill and knowledge. Shilkret v. Annapolis Emergency Hospital Association 349 A.2d 245 (Md. App. 1975); Brune v. Belinkoff 235 N.E.2d 793 (Mass. 1968); A.H. McCoid, “The Care Required of Medical Practitioners” 12 Vanderbilt L Rev 549 (1959), at 569ff.Google Scholar
Morreim, , CLR, supra note 2, see esp. pp. 1731 ff., 1735ff., and 1745. I do not believe that tort law's accommodation to economics can be quite so facile as Hall supposes, however. Though courts can embrace a wide variety of practice styles, including conservative approaches that reduce the quantity of care, they cannot readily accept clear reductions in the actual quality of care. A minority practice is not “respectable” if it leads to clearly poorer outcomes or markedly increased morbidity and mortality. Perhaps courts could accept a profession-wide “downshifting” of customs, yet those first individuals who would dare lead the drive toward lower, not just leaner standards, would indeed expose themselves to risk. Even cutbacks on marginally useful interventions carry some liability risk, where they exacerbate diagnostic or therapeutic uncertainties. See C.C. Havighurst, “Alternating the Applicable Standard of Care,” 49 Law and Contemporary Problems 265, at 269; C.C. Havighurst, “Private Reform of Tort-Law Dogma”, 49 Law and Contemporary Problems 143 (1986); CLR, supra note 2, at 1732–36; R. Bovbjerg, “The Medical Malpractice Standard of Care: HMOs and Customary Practice,” 1975 Duke Law Journal 1375 (1975), at 1404. Further, in the near future it will be increasingly easy for courts to identify practices that fall below recognized standards. Both the medical community and third party payers are aggressively undertaking “outcome studies” to determine which treatments are most effective for which ailments, and they are formulating “clinical protocols,” or “practice parameters” to guide physicians in the routine management of routine medical problems. As these emerge, it will become clearer which medical practices lead to substantially poorer outcomes, and which deviate significantly below the norms of the profession. See Roper, W.L. Winkenwerder, W. Hackbarth, G.M. and Krakauer, H., “Effectiveness in Health Care,” 319 New England Journal of Medicine 1197 (1988); Ellwood, P.M., “Outcomes Management: A Technology of Patient Experience,” 318 New England Journal of Medicine 1549 (1988); Scheier, R., “Medicine by the Book,” American Medical News 1/6/89, pp. 1,14.Google Scholar
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In a somewhat analogous move, the State of Tennessee has brought certain sorts of charity care under its provisions of sovereign immunity. In its Community Health Agency Act of 1989, Section 15, (Pub.Chap.No.567; 68-2-1115) physicians or other primary care providers who are caring for indigent patients according to the provisions of the Act will be covered under the State Tort Claims Commission. That Commission restricts the total damages that citizens can be awarded in suits against the state to $300,000 per claimant and $1,000,000 per occurrence. (TN Claims Commission, 9-8-307, (s) (3)(e)). Although these are limits on damages that can be recovered in malpractice claims, rather than limits on the standard of care that the physician owes the patient in the first place, it is significant that in these and other charitable and sovereign immunity cases, states explicitly affirm that poorer citizens are not entitled to the same level of compensation for their malpractice injuries as wealthier citizens. Whether via a lower standard of care, or through a limitation on damage recovery, however, the result for the indigent patient is the same: a lower compensation for his injuries than he would receive under the same circumstances, if he were affluent.Google Scholar
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