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It All Depends on What the Meaning of "Discretionary" Is

July 13, 2006 1:44 AM

While we carry on our friendly little discussion, Ted, in such civil tones, the outside world is seemingly conspiring to tempt us with distractions on all sides. Shiny and glittery though those distractions may appear, I�m going to ignore them. Here on our own little discursive island, we do seem to be making some progress, you and I. Not toward full agreement, perhaps. But maybe toward a clearer statement of the issues.

I want to summarize your proposal as I understand it from the posts to date. We�re not going to have malpractice liability for medical �judgment calls.� We still haven�t decided how to draw the line between �judgment calls� and actionable conduct, but let me defer that question for a moment. Within the �judgment call� domain, we won�t have malpractice liability even for patients who suffer serious injury that was concededly caused by their medical care. Those patients will not only be denied any right to seek �noneconomic� damages for pain and suffering or emotional distress. They will also be unable to sue for their lost income or medical costs, or indeed for any damages at all. You�re willing to keep an open mind about doing something else to compensate them. We could make malpractice insurance available to health-care consumers through their own health insurance plans (at least for people who have health insurance in the first place). Or maybe we could adopt a governmentally funded no-fault compensation plan like New Zealand�s. But compensating such victims isn�t a sufficiently urgent problem, in your view, that we should condition acceptance of your proposal on alternative remedial measures. Within the �judgment call� universe, it would be okay to treat adverse outcomes pretty much the way we treat cerebral aneurysms: some people just get them, and it�s their misfortune to bear. Meanwhile, to keep practitioners on their toes about making the best choices among the reasonable �judgment calls� at their disposal, we should rely largely on the health-care industry to police itself.

Apparently, that doesn�t sound to you like a dangerous experiment. And in a way, you may have a point. In a way, your proposal sounds a lot like the existing system. In that system, after all, malpractice liability does not attach, in theory, unless the provider violated the applicable standard of care. A physician�s �judgment call� between two reasonable treatment alternatives, both of which conform to that standard, is not actionable. If a malpractice plaintiff cannot produce competent expert evidence from which a jury could reasonably find that the provider pursued a standard-violating course over a standard-satisfying alternative, the claim should already be weeded out at the summary judgment stage. Even sooner than that, potentially, in states with malpractice screening panels or certificate-of-merit requirements.

You will say, perhaps, that my description of the existing system is accurate in theory, but miserably inaccurate in practice. That may be so (although you do seem readier than I am to assume the existing system�s near-perfect randomness). My point is merely that little may be achieved by altering the nominal legal standard and leaving the system otherwise intact. Call the standard �gross negligence� or �recklessness,� if you like. I�m not sure much will change, except the courthouse vocabulary.

Mind you, issues of vocabulary can sometimes be important to people -- if not to jurors, then to people in voting booths. If political viability matters, I am curious what nomenclature you�d propose. If we�re to have legislation immunizing physicians for mere �negligence,� and permitting claims only for �gross negligence� or �recklessness,� then some pretty unappetizing statutory language will have to be unveiled eventually -- language with which even the AMA may need some time getting comfortable. Now seems as good a time as any to float the trial balloons.

But I am sorry to have injected politics into this. We�d been doing so nicely, and then I went and spoiled the mood. Please consider my ill-considered remarks just now to have been offered in the same sportively jocular spirit that presumably animated your own playful little swipe at John Edwards.

Back to serious business, then. You will also say, perhaps, that the issue is not so much the language of the standard, as the identity of the Decider. You are very explicit about your mistrust of juries in the malpractice setting, and your candor is to be commended. Of course, if hindsight bias were enough to disable jurors from making sound decisions, then we might need to take a fresh look at the Seventh Amendment more generally. But although I�m probably a much bigger fan of juries than you are, I�m not going to take any positions here that depend on blind faith in their unerring wisdom. Rather, I�m going to ask what you�re proposing to change, on the Decider front. Judges already decide whether the plaintiff�s expert evidence is admissible, under Daubert, Frye, or whatever test for expert testimony may apply in the relevant jurisdiction. Judges already decide, as well, whether the plaintiff�s expert satisfies competency requirements prescribed under state law (some of which are pretty exacting). And once the admissibility issues are resolved, judges still decide whether a reasonable jury could find that a provider�s treatment choices represented anything but a �discretionary judgment call,� as you�re terming it, among reasonable alternatives falling within the prevailing standards for acceptable medical care. That will basically remain the division of decision-making labor under any plausible �reform� regime.

To make your proposal a plausible candidate for effecting the kinds of change you�re after, it seems to me you�d need something more than you�ve yet proposed -- something along the lines of a formal codification of the standard of care for different medical specialties, spelling out the domain of acceptable medical practice in specific, substantive detail.

I�m not sure that�s a bad idea at all, by the way. Maybe some well-chosen batch of Deciders should get together, form a policy advisory panel, and define some universe of treatment choices that would be presumptively acceptable in various paradigmatic medical situations. Maybe that would be an excellent platform to get some constructive discussions going between doctors and attorneys. (We need more of those, and less rhetoric pitting the professions against each other.) Alternatively, maybe such a proposal is naive, given the overheated political climate and the reservoir of bad feeling on all sides. And maybe it�s impracticable. Given the rapid rate of medico-scientific change these days, it�s possible that this year�s hard-won consensus would soon be overtaken by next year�s new and unforeseen technological and biomedical developments.

But it might be worth a shot. I�m not talking about specialized medical courts, here. Those might or might not be able to foster the speedy evolution of an enlightened de facto codification. But we should not be asked to buy a protocol in a poke. If it�s really so straightforward a matter, among knowledgeable professionals, to define the realm in which reasonable �judgment calls� should be permitted to operate, then it seems fair to ask for the definition going in.

Who�d have thought it would come to this, Ted? Here I am, actually trying to take your proposal, run with it, and make it workable. Note to self: ask PoL�s management whether that�s allowed.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.