Symposium on trauma in otolaryngology. V. Legal aspects of trauma: Medically induced and the basis of liability therefor.
Authors: Weber Richard D. 
Published: September 2006

New trends in medical liability require critical analysis.

The Michigan Supreme Court recently abrogated the community standard rule so far as specialists are concerned in malpractice cases. Common law required that a physician exercise that degree of reasonable diligence and skill that is ordinarily exercised by physicians engaged in the same line of practice in the particular community. Now, so far as specialists are concerned, the standard of care is that of a reasonable specialist practicing medicine in the light of present day scientific knowledge; geographical conditions or circumstances control neither the standard of the specialist's care nor the competence of an expert witness' testimony in a malpractice case. This leaves to courts and juries the privilege of deciding whether and when research and experimental work has progressed to a points that it should be adopted by the medical profession for administration to patients. It overlooks the differences which exist between private practice in the field and clinical practice under multi‐personnel supervision, as well as the differences between services performed by the private practitioner and doctors engaged in research. To the extent that the doctors may be called upon to use new procedures before their sound professional judgment has determined their effects, the patients may suffer.

Assault and battery imposes liability against a physician who treats a patient without his consent, notwithstanding any allegation of negligence. From this has come the doctrine of informed consent, which holds that a physician subjects himself to liability if he withholds any facts which are necessary for his patient to form the basis of an intelligent consent to the proposed treatment. There are no guidelines as to how far a physician must go in explaining the risks in order to obtain informed consent. The only prescription in this expanding area of uncertainty is the use of carefully drafted consent forms coupled with sound judgment on the part of the physician.

Liability for breach of contract can be founded without the requirement of expert testimony against the physician. There is no standard of care involved, and the tryer of fact simply resolves the matter on the question of veracity between the plaintiff‐patient and the defendant‐physician. Although the common law has recognized that physicians could be liable for objective contracts to do certain acts, the Michigan Supreme Court has recently imposed liability against a physician on the basis of a subjective contract of cure. The Court imposed contractual liability based upon the physician's representations as to the quality of a particular result, thus expanding the physician's statements of reassurance to form a contract of cure. Since the veracity of the parties determines the resolution of this claim, it is advisable that the physician record his disclaimers of guarantees in his medical records, albeit the same has no medical significance. Practical experience indicates that juries have difficulty in believing that doctors can remember what they told a patient some years ago, and a simple notation in the records to refresh his recollection might well control the outcome.