Informed Consent: No Longer Just What the Doctor Ordered? Revisited

The law of informed consent in medicine has evolved from the original doctrine which required the physician’s disclosure of the risks, benefits, and complications of (and alternatives to) a proposed procedure or treatment. The doctrine now implicates the disclosure of matters personal to the physician. Questions regarding the breadth of the doctrine in other respects have developed as well. This paper represents the author’s second examination of the unconventional aspects of the law of informed consent

Habit Forming: Evidence of Physician Habit in Medical Negligence Litigation

”Habit” is a time-honored component of the law of evidence. Habit evidence is generally understood as specific conduct which occurs repetitively, over a period of time, in response to a known stimulus. Habitual conduct is also thought to be non-volitional, suggesting that it encompasses conduct without thought. This paper focuses on whether the practice of medicine is, in any respect, “habitual.” Are medical negligence litigants, plaintiffs and physicians, entitled to introduce evidence of physician habit to demonstrate deviation from or compliance with the applicable standard of care? Is the practice of medicine entirely volitional and judgmental, such that classic habit evidence is inapplicable to medical negligence litigation? This Article addresses these topics in an effort to identify the various positions adopted by courts in the United States and recommends that courts receive physician habit evidence in medical negligence trials

Non-Physician VS. Physician: Cross-Disciplinary Expert Testimony in Medical Negligence Litigation

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to give standard of care testimony against physicians? Cross-disciplinary standard of care testimony against physicians has been provided by an array of non-physicians: a biomechanical engineer, a pharmacist, a nurse, pharmacologists, and a pharmacologist/toxicologist. Is cross-disciplinary standard of care expert testimony an aberration? Does it reveal a failure of trial courts to understand the practice of medicine and knowledge of the standard of care? These topics are the primary focus of this paper. o be fair, it should be noted that the reasoning of some courts topermit or exclude non-physician, cross-disciplinary expert testimonymay be informed by state rules of evidence, rules defining expertwitness requirements, or rules pertaining to lawsuit filingrequirements. Those rules may be unclear and require interpretation.Therefore, rules such as these are not the focus of this paper. Instead,this paper focuses on how courts understand medicine, the standardof care, and the professional, experiential distinction betweenphysicians and non-physicians. Ultimately, this paper recommendsthat trial courts should not permit non-physicians to opine thatdefendant-physicians have deviated from the applicable standard ofcare while recognizing that as more medical care is provided by nonphysicians,courts may decline this recommendatio