Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
defendant should be judged by New Bedford standards, “having regard to the current state of
advance of the profession.” This may well be carrying the rule of Small v. Howard to its logical
conclusion, but it is, we submit, a reductio ad absurdum of the rule.
The proper standard is whether the physician, if a general practitioner, has exercised the
degree of care and skill of the average qualified practitioner, taking into account the advances in
the profession. In applying this standard it is permissible to consider the medical resources
available to the physician as one circumstance in determining the skill and care required. Under
this standard some allowance is thus made for the type of community in which the physician
carries on his practice. See Prosser, Torts (3d ed.) § 32 (pp. 166-167).
One holding himself out as a specialist should be held to the standard of care and skill of
the average member of the profession practising the specialty, taking into account the advances in
the profession. And, as in the case of the general practitioner, it is permissible to consider the
medical resources available to him.
Because the instructions permitted the jury to judge the defendant’s conduct against a
standard that has now been determined to be incorrect, the plaintiffs’ exceptions to the charge and
to the refusal of his request must be sustained. . . .
Notes
1. Compare Brune to Trimarco or T.J. Hooper. Why is the rule for custom in medical
malpractice different from the rule for custom in negligence cases more generally?
2. Custom in medical malpractice cases. Although most courts have deferred to custom in
medical malpractice cases, the Washington Supreme Court did the opposite in Helling v. Carey.
In Helling, the plaintiff, a 32-year-old patient, consulted the defendants, two ophthalmologists, for
what seemed to be myopia. The physicians did not administer a pressure or field of vision test
until nine years after the plaintiff’s first consultation. Upon administering the test, however, the
physicians discovered that the patient was actually suffering from glaucoma, a disease that is
undetectable in the absence of a pressure test “until the damage has become irreversible.” Helling
v. Carey, 519 P.2d 981, 981 (Wash. 1974). At the time of test, the plaintiff had “essentially lost
her peripheral vision.” Id. at 982. The plaintiff sued the ophthalmologists, alleging that she
“sustained severe and permanent damage to her eyes as a proximate result of the defendants’
negligence in failing to administer a timely glaucoma test.” Id. Even though medical experts
testified that the “standards for the profession . . . do not require routine pressure test[s] for
glaucoma” for patients under forty, the court disagreed. Id. Overriding physicians’ customary
practices, the Washington Supreme Court held that the “reasonable standard that should have been
followed [by the physicians] . . . was the timely giving of [a] simple, harmless pressure test to
th[e] plaintiff.” Id. at 984.
In later cases, Washington courts curtailed Helling’s holding. For example, just two years
after Helling was decided, the Washington Court of Appeals noted, “[Helling’s] holding . . . was
intended to be restricted solely to its own ‘unique’ facts, i.e., cases in which an ophthalmologist is
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