Unreasonable Care

This paper examines “doctrinal feedback” in negligence law, and specifically in medical malpractice. Doctrinal feedback is an organic, reiterative process that causes inadvertent and inadvisable changes in both law and practice. It occurs when: (1) the ambiguity of the applicable legal standard prompts those it governs to behave overcautiously, so as to avoid the gray areas of liability; (2) the legal standard incorporates that increased level of caution as the new norm, and (3) the cycle starts again, with a new iteration of overcompliance based on the new, heightened standard. I argue that this feedback effect is present in medical malpractice. First, physicians living in the shadow of negligence law’s “reasonable care” standard routinely provide more care than the standard demands. Next, as that extra level of care becomes customary, it also becomes part of the reasonable care standard. Finally, overcautious physicians then provide even more care, so as to steer clear of the new standard. The bulk of the paper explores the evidence for this phenomenon, and then I briefly examine the potential for similar feedback in other fields of law.