James Gibson, a law professor at the University of Richmond, has a new article up on SSRN titled Doctrinal Feedback and (Un)Reasonable Care. Here is a portion of the abstract:
The law frequently derives its content from the practices of the community it regulates. . . .Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more-than-reasonable care - extra tests, unneeded procedures, etc. - so as to steer clear of tort liability's considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, the law feeds them back into doctrine, making overcompliance into mere compliance and racheting up the standard of care. Overcautious physicians then have to do even more to steer clear of liability, and the cycle begins anew. . . .
This is a great framework in which to understand how the threat of liability chills physicians from doing the "right" thing. Since physicians accede to inappropriate surrogate demands, they create the very standard they want to get away from. As a recent comment at Dinosaur Musings observed:
According to most state laws a physician is not obligated to provide care that is deemed futile, part of the problem is we let the families decide what is futile and/or too many physicians are too afraid to make that decision.
At this point, it seems that without a change in the legal rules which are pegged to standard of care, physicians need to collectively change the standard of care itself. Dr. Dinosaur suggests:
Obviously one key is to improve our prognostic skills while remaining ever vigilant about limiting truly futile care. . . . [I]f everyone did it, over time we might very well find our predictive capacities improving. Eventually, physicians might feel empowered to limit aggressive care to those with very low likelihoods of survival. I know this sort of thing may be happening now on an informal basis, but if it were more systematized if might become easier to incorporate into policy.