Historically, courts have treated professional malpractice cases as unique. When disputes that would otherwise have been governed by tort rules of general application have arisen in the context of medical treatment, courts have routinely constructed special rules for the resolution of those disputes. Recent evidence suggests that this penchant for special rules may be weakening and that malpractice law may be slowly melting back into the sea of tort doctrine.The three Missouri health care law cases noted in this issue are the latest evidence that courts today are more willing to resolve medical negligence actions using tort rules of general application than they once were. These three cases also typify the halting, labored nature of common law shifts of this kind. All three of these cases involved bright-line “no duty” rules that had been specifically fashioned for medical negligence cases. One case involved the duty of “on-call” physicians. Traditionally, on-call specialists have not owed patients a duty to arrive at the hospital quickly unless a prior “physician-patient” relationship existed with the patient. The second case reexamined a similar no-duty rule that excuses pharmacists from a duty to warn their customers of drug risks such as improper dosages and incompatible drugs. The third case considered the viability of the “learned intermediary” doctrine, a no-duty rule that excuses pharmaceutical manufacturers from the duty to warn patients of the risks associated with their prescription drugs. Rules like these erect tidy, bright spheres of obligation in malpractice law that are atypical of modern tort doctrine--a body of law that usually defines obligations with vague, but flexible, concepts such as foreseeability and reasonability. In two of the three Missouri cases noted here, the Missouri courts backed away from these special duty rules. And in the third, the court was careful to evaluate the continued wisdom of the rule before reaffirming it. Collectively these cases are consistent with other evidence, discussed in Part V below, indicating that courts are increasingly willing to re-examine the special rules formulated for health care torts.
Philip G. Peters Jr., Breaking Down the Boundaries of Malpractice Law, 65 Mo. L. Rev. 1047 (2000)