The "Respectable Minority" Doctrine in Missouri
Medical Negligence Law

by Glenn E. Bradford1

Introduction

This article will examine the state of Missouri law as to the standard of care applicable in medical negligence2 and medical licensing disciplinary cases. In particular, we will examine the respectable minority or two schools of medical thought doctrine, its evolution in the courts of other states, and its potential application to Missouri negligence law, both in the courts in medical negligence actions and in physician licensing disciplinary actions. Although issues of competing medical treatments have not come up often in Missouri case reports, recent public interest in alternative and complementary medicine suggests that Missouri courts will soon be faced with additional opportunities to make determinations as to the appropriate standard of care in cases where a physician chooses an alternative medicine approach to treatment.

Historical Development of the Standard of Medical Negligence

"Because patients have [historically] been deemed incapable of individual bargaining" to secure expert medical services, a physician's duties assumed under a "contract for professional care have been given content and specificity" under tort law rather than under contract law.3 Under traditional tort jurisprudence, liability for injury is based on the concept of negligence. Medical malpractice actions typically rest on proof of a breach of the established "standard of care," the violation of which is deemed by the law to constitute medical negligence. 4 The standard of care is usually described as that which physicians actually do in their everyday practice of medicine.

Although some fact situations, e.g., a sponge left in the back after surgery, 5 are so suggestive of negligence that expert testimony is not required, the vast majority of medical negligence cases require expert medical testimony to establish that the defendant physician has varied from the applicable standard of care and that injury has thereby resulted. 6 This is so because an ordinary layman is not equipped by common knowledge or experience to judge the skill and competence of the practice at issue and determine whether it meets the standard of such professional practice in the community. 7 The aid of expert testimony from those learned in the profession is required. 8 Of course, if the defendant physician himself provides the expert testimony, additional expert testimony is not required. 9 The plaintiff must present competent expert medical testimony that the defendant "failed to exercise that degree of skill and learning ordinarily exercised by members of his profession under the same or similar circumstances . . . . " 10 The accepted working shorthand for this definition is the phrase, "below the standard of care." 11

Until relatively recently, the standard of care applicable in a medical negligence action was based on local standards of practice as adopted by competent physicians in the local community. 12 Gradually, jurisdictions abandoned the locality rule in favor of a national standard of care theoretically applicable anywhere in the country. 13 The Supreme Court of Missouri abandoned the locality rule in favor of the national standard in the 1972 case of Gridley v. Johnson. 14 The practical effect of this change in the law was to allow for the use of medical experts from other jurisdictions. 15 This change in the law clearly had the result of blunting the effect of "the so-called 'conspiracy of silence'" among physicians. 16

In lawsuits involving medical negligence, evidence of professional custom is treated as conclusive. 17 In other words, the jury does not have the latitude to go behind evidence of professional custom to decide if the custom is reasonable and sufficient. The standard of care is the yardstick by which the quality of medical care is measured. 18 Of course, there can be a dispute between medical experts as to the correct and applicable standard of care in any given case. However, the issue of the applicable standard of care is usually fairly straightforward. The law looks to the established custom of the medical profession to determine the applicable standard of care. 19 Proof of the standard of care is made by way of the testimony of an expert witness.

Physician Licensing Disciplinary Cases

As in civil medical negligence actions seeking money damages, professional licensing discipline cases frequently turn on standard of care issues. 20 The Missouri State Board of Registration for the Healing Arts is set up by the Missouri Healing Arts Practice Act, Chapter 334, RSMo, and is charged with licensing and disciplining the medical profession in the state of Missouri. 21 The disciplinary portion of the Healing Arts Practice Act, § 334.100.2, does not specify quality of care standards in detail but regulates the quality of care indirectly by the incorporation of the concept of negligence (or violation of the standard of care) as one of the grounds for physician discipline by the Missouri State Board of Registration for the Healing Arts. For example, the Healing Arts Practice Act, Chapter 334, RSMo 1994, provides that a physician's license may be disciplined for, among other things, "repeated negligence" or "gross negligence." 22 Negligence is defined as a violation of the standard of care. 23

Establishing the Standard of Care

In order "[t]o make a submissible [case] of medical [negligence], [the] plaintiff must establish that [the] defendant's acts or omissions: (1) failed to meet the requisite standard of care; (2) were performed negligently; and (3) caused [the plaintiff's] injuries." 24 Generally, the "plaintiff must introduce expert testimony to prove that [the] defendant [physician] failed to exercise the degree of skill and care ordinarily used under the same or similar circumstances by members of [the] profession." 25 "An honest error of judgment . . . is insufficient to support liability unless that mistake constitutes negligence." 26 "An expert doctor's opinion . . . must be based upon an established standard of care and not upon a personal [opinion]. 27 This is because a physician's personal standards "may be higher or lower than the standards of the profession as a whole." 28

Experts usually arrive at their opinions on standard of care by combining their own personal experience and knowledge of customary practices with their knowledge of the medical literature. 29 Increasingly, specialty boards and government agencies are issuing standards of practice. 30

Many times the relevant standard can be found in a medical journal article or treatise. In many cases, the applicable standard of care is well known, unequivocal, and widely accepted in the medical profession. The typical medical malpractice case often features a battle of the experts, with each side contending that its particular version of the one true standard of care should prevail. However, in some medical negligence lawsuits, defendant doctors have argued that there were in effect two separate and distinct standards of care. This basic argument has been accepted by some courts as the two schools of medical thought doctrine. 31 This defense has also been referred to as the good faith minority defense. 32

The Rise of Alternative/Complementary/Holistic Medicine

In recent years, significant numbers of orthodox physicians have embraced, or perhaps rediscovered, so-called alternative medicine or complementary medicine. These practitioners typically recommend certain alternative or complementary treatments in addition to, or in lieu of, more traditional, mainstream approaches. 33 Many other alternative health care providers are not trained physicians at all, some possessing significant training and education and some very little. 34 Alternative, complementary and holistic 35 medicine have received much coverage in the media in recent years, and statistics demonstrate that more and more people have taken an interest in the possibilities of alternative medical treatments and procedures. Various forms of alternative medicine have gained visibility in recent years, including acupuncture, 36 colonics, naturopothy, massage therapy, herbal medicine, aromatherapy, 37 Rolfing, 38 biofeedback therapy, 39 and homeopathy, 40 to name a few. 41 Many individuals have taken an active role in their own personal medical care by exploring the possibilities presented by changes in diet, regular exercise, and vitamin regimens. Health food stores dot the landscape. The world wide web contains numerous sites devoted to health and wellness.

Existing state licensing boards have struggled to reconcile the standards and practices of alternative medical practitioners with traditional notions of the standard of care. 42 It is only reasonable to expect that the physician licensing boards will view the treatment practices of the various medical subgroups from the established perspectives of the two traditional professional subgroups, allopathic and osteopathic medicine. 43 The Missouri Healing Arts Practice Act provides that repeated negligence is a basis for license discipline by the Board of Healing Arts. 44 Repeated negligence equates to repeated violation of the established standard of care. 45 The basic regulatory issue currently presented by alternative medicine in the state of Missouri is whether the medical profession can and should be required by law to conform itself to the generally accepted conventions of medical science as represented by the generally accepted standard of care. 46 Given the current widespread interest in alternative medicine, often involving unproven treatment approaches, at least by the conventional standards of epidemiology and evidence-based medicine, how is the law to regulate the practice of alternative medicine? 47 Put more directly, can the adoption of alternative/complementary treatment approaches subject a Missouri physician to medical malpractice liability?

The History and Development of the "Two Schools of Medical Thought" Doctrine

In some professional negligence cases, courts around the country have refused to find a physician liable for malpractice if the physician, in using his best judgment, followed one of two or more alternative treatments recognized in the profession as acceptable. This approach has been called the two schools of medical thought or the respectable minority doctrine. The cases discussing the two schools of medical thought doctrine are surprisingly few in number. We will examine the two schools of medical thought doctrine, its development and evolution in the courts, and its potential application to legal issues related to alternative medicine in Missouri, both in the courts in medical negligence actions and in professional licensing regulation and physician disciplinary cases.

Pennsylvania Cases

The state of Pennsylvania is the home of many of the decisions considering the scope, definition and application of the two schools of medical thought doctrine. In Remley v. Plummer, 48 Pennsylvania law first recognized the essence of the two schools of thought doctrine and defined "recognized among their peers" as " . . . [A]nd where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed the course of treatment advocated by a considerable number of his professional brethren in good standing in his community." 49 The court stated that to qualify as a school of thought the treatment given must be practiced by a considerable number of physicians within the community. Unfortunately, the court offered no guidance as to what constitutes a considerable number, but did state that the burden of proof was on the defendant physician to show he was a member of this considerable number of physicians.

Pennsylvania judges followed the considerable number test as a guide to qualifying a treatment as a school of thought until 1965, when the Supreme Court of Pennsylvania affirmed Tobash v. Jones. 50 Tobash altered the definition of the two schools of thought doctrine from the considerable number standard to a more liberal test that stated "[I]f you find that there is competent authority, although divided, competent medical authority, subscribed to by reputable, respectable and reasonable medical experts . . . then you couldn't say he was negligent for following any of the recognized experts in the field." 51 (Emphasis added). Again, no guidance was offered as to how many experts it took to qualify as a school of thought, and the possibility that as few as one expert was enough to constitute a respectable minority made this test less than an ideal answer.

After the decision in Tobash, Pennsylvania courts continued to struggle with defining the two schools of thought doctrine. In 1980, they switched back to the considerable number test, only to switch once again in 1984 to "reputable, respectable and reasonable medical experts." Most recently, Pennsylvania decided in Jones v. Chidester 52 that the correct standard for avoiding malpractice liability is that the physician "followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise." 53

The court reasoned that the reputable and respected part of the test ensured the quality of a treatment or procedure while the considerable number requirement of the test ensured that there was some measure of general acceptance in the profession. The court explained that the reputable and respected test merely required a showing that there exists a small minority of physicians who agree with the practice. Because the former test did not ensure the general acceptance of the practice, the court felt it inadequate. 54

The court recognized that no definition of what constitutes a considerable number was provided. The court stated that the burden of proof on this issue falls on the defendant to establish that there are, in fact, two schools of thought that meet the criteria. 55 The court stated, "Once the expert states the factual reasons to support his claim that there is a considerable number of professionals who agree with the treatment employed by the defendant, there is sufficient evidence to warrant an instruction to the jury on the 'two schools of thought.'" The court advised that at that point "[i]t then becomes a question for the jury to determine whether they believe that there are two legitimate schools of thought such that the defendant should be insulated from liability." 56

Texas Supreme Court Attempts to Refine Two Schools of Thought Doctrine

In Hood v. Phillips, 57 the Texas Supreme Court considered a case in which the plaintiff claimed not that the defendant's treatment was negligent, but that it was negligent to use the surgical technique used by the defendant. The court noted that there were at least "four [different] standards that may be applied to a medical malpractice suit based on the assertion that the mode or form of treatment was not" an appropriate treatment "for the diagnosed condition:" (1) the respectable minority standard; (1a) the treatment advocated by a considerable number of doctors standard; (2) the test of whether reasonable surgeons would disagree; (3) the no variance standard ("when a particular mode of treatment is upheld by a consensus of opinion among the members of the profession, it should be followed by the ordinary practitioner; and if a physician sees fit to experiment with some other mode, he should do so at his peril,") 58 and (4) "what a reasonable and prudent doctor would have done under the same or similar circumstances." 59

The Texas Supreme Court noted that a review of the various standards demonstrated that most courts considering the question had not distinguished between "'experimental,' 'outmoded,' 'rejected,' and 'accepted,'" forms of treatment. 60 The court stated that "the 'respectable minority standard' . . . and [the] 'considerable number' test could convey to a jury the incorrect notion that the standard for malpractice is to be determined by a poll of the medical profession." 61 The court rejected these standards and adopted the following as the appropriate standard of law:

A physician who undertakes a mode or form of treatment which a reasonable and prudent member of the medical profession would undertake under the same or similar circumstances shall not be subject to liability for harm caused thereby to the patient. The question which conveys to the jury the standard which should be applicable is as follows: Did the physician undertake a mode or form of treatment which a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances? 62
The court went on to say that this standard generally should be applied whether the treatment is experimental, outmoded, or rejected. 63 The factors to be considered when measuring by this standard include, but are not limited to, the expertise of and means available to the physician-defendant, the health of the patient, and the state of medical knowledge.

The Arizona Test–No Group Too Small

The Texas Supreme Court in Hood v. Phillips noted the difficulty in determining what constitutes a respectable minority. 64 The court referred to the Arizona case of Leech v. Bralliar, 65 where the federal district court considered the appropriateness of a treatment called "prolotherapy" for the treatment of whiplash injury to the neck. Prolotherapy was said to involve the injecting of a "proliferating solution . . . into ligamentous attachments . . . to create a 'weld' of torn [tissue]." The Leech court found that prolotherapy "was recognized as an appropriate method of therapy by a small minority of physicians in the United States." 66 The court stated that "[t]his minority of physicians has not been shown to be other than respectable physicians." 67 The respectable minority in Leech was composed of some 65 physicians throughout the United States who claimed an improvement rate of 85%. At the time the defendant used prolotherapy the method was two years old and was not without critics within the medical profession. 68 The court found that the therapy had not been generally accepted by the medical profession. 69 In the court-tried case, the court held the physician liable because he varied the treatment, with those personal variations not conforming to the accepted procedures of the respectable minority.

The clear implication of the court's holding in Leech is that 65 physicians nationwide would have been a sufficient number to qualify as a respectable minority, relieving the defendant physician of liability had he followed the accepted procedures as recognized by such a minority. Although the Texas Supreme Court in Hood v. Phillips cited Leech as a reason why the respectable minority standard would not be adopted in Texas, the case remains good law in Arizona.

Washington Adopts Rule of "Generally Recognized Treatment"

In Kelly v. Carroll, 70 the Washington Supreme Court stated a general rule in terms of "generally recognized treatment":

[I]f there is a reasonable general agreement as to what is the proper medical treatment for a disease or an organic disorder, the question of whether or not the treatment, in a particular case, was correct must be determined by the testimony of expert witnesses from the medical field who alone are qualified to speak. [I]f he [a health practitioner] steps out of his limits and undertakes to treat a disorder for which, in the highest level of medical science, there is a generally recognized treatment, such [an] interloper must be held accountable to the accepted standard of treatment. 71
The Washington Supreme Court did not further elucidate what it meant by its reference to "the highest level of medical science."

The California Test

California's approved jury instruction articulates a slightly different standard, as follows:

Where there is more than one recognized method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all practitioners of good standing, a physician is not negligent if, in exercising [his] . . . best judgment, [he] . . . selects one of the approved methods, which later turns out to be a wrong selection, or one not favored by certain other practitioners. 72
Unquestionably, the California test relies on the identification of treatments recognized by the defendant's profession. The California test thus allows for the decision as to the scientific bona fides of a particular treatment to be made by the members of the profession of medicine, rather than by a judge or a jury. 73

No reported Missouri case on "two schools of medical thought" doctrine. Is there room for an "honest difference of opinion among competent physicians?"

No reported Missouri case discusses the two schools of medical thought or respectable minority doctrine per se. Missouri defines medical negligence as "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession." 74 It has been stated that "[m]embers of the medical profession are 'entitled to a wide range in the exercise of [their] judgment and discretion and [can] not be found guilty "unless it be shown that the course pursued was clearly against the course recognized as correct by the profession generally. . . . " 75 "As long as there is room for an honest difference of opinion among competent physicians, a physician who uses his own best judgment cannot be convicted of negligence." 76

It therefore appears that Missouri law recognizes the honest difference of opinion among competent physicians standard rather than the two schools of thought doctrine. Although the two concepts appear to convey a similar idea, Missouri case law has not spelled out the standards for determining whether an "honest difference of opinion among competent physicians" truly exists. All we know for sure based on Missouri cases is that the honest opinion of one physician will not establish the standard of care. 77 Therefore, in Missouri, it appears that a physician defendant must find at least one other competent physician who agrees with his course of treatment. It has been held that, as a matter of sound public policy, even though a practitioner of a particular school or system of medicine may not be found negligent for following the teachings of her particular school, the general rule is limited by the qualification that the school must be a recognized school of good standing, which has established rules and principles of practice that members are supposed to follow. 78 Beyond those broad general principles, Missouri law specifies no clear standards for determining when an honest difference of opinion exists.

Missouri courts have also announced the general principle that a physician will not be held negligent for using his own best judgment, unless the treatment is against the course recognized as correct by the profession generally. 79 This case law appears to provide a limitation on the scope of the honest difference of opinion standard. Thus, under existing Missouri case law, a physician cannot be found negligent (or disciplined for repeated negligence) for using his own best judgment if the finder of fact determines that there exists an honest difference of opinion among competent physicians, unless his treatment approach is against the course recognized as correct by the medical profession generally.

Two Schools of Thought Summary

While allowing reasonable latitude in the law of medical negligence for different schools of medical thought seems a worthwhile goal, as the above discussion demonstrates, the law has been unable to articulate a widely-accepted and practical legal standard for the application of the two schools of medical thought doctrine. The premise seems reasonable but the means of enforcement have been lacking. 80 As one commentator simply stated after reviewing the case law, "The test to determine whether a physician's treatment falls under this 'two schools of thought' doctrine is unclear." 81

The author would submit that the California formulation of the test holds superior promise for practicality of enforcement over the various iterations of the two schools of medical thought doctrine or Missouri's current standards of an honest difference of opinion among competent physicians and/or a treatment choice against the course recognized as correct by the profession generally. The author would submit that the medical profession as a whole is in a far better position to evaluate new or alternative drugs or medical treatments than are the courts or administrative agencies. If a particular medical subgroup cannot win the approval of medicine generally for its treatment methods through the quality of its scientific documentation of safety and effectiveness, then the courts are in no position to reverse the consensus of medical science and effectively sanction such treatments. Few administrative or civil judges have medical or scientific training or the requisite years necessary to invest in properly studying the developing science. The California test puts the decision on choice of alternative treatments in the hands of medical and scientific professionals, where it would seem to belong.

Burden of Proof on Two Schools of Thought Defense

An important facet of the two medical schools of thought doctrine is issue of who has the burden of proof on the issue of an existing, bona fide alternative school of thought. Although the plaintiff normally has the burden to prove a violation of the standard of care, evidence supporting the submission of the two schools of thought doctrine will normally be provided by the defendant's expert witnesses. The two schools of thought defense would best seem to equate to an affirmative defense. In Jones v. Chidester, the Pennsylvania Supreme Court specifically held that the burden of proof was on the defendant to establish that there were two schools of medical thought on the issue in question. 82 The court stated that a jury instruction on the two schools of thought defense is not warranted until the defendant physician presents sufficient evidence to support her claim. 83

In the Arizona case of Leech v. Bralliar, 84 the court found that there was an alternative approach to care supported by a minority of physicians but that the defendant had not demonstrated that he followed the teachings of the minority in his use of the treatment. The Arizona court also put the burden of proof on the physician to prove an accepted alternative standard of care and that he followed that particular methodology.

After Jones v. Chidester, later Pennsylvania cases considered the burden of proof issue as related to what is required to prove an existing school of thought. In the case of Bonavitacola v. Cluver, 85 the court of appeals held that the defendant professional carries the burden of introducing sufficient evidence that a considerable number of professionals agree with his treatment approach. In Tesauro v. Perrige, 86 the court of appeals held that the burden was on the defendant to produce "adequate factual support for his claim that there are a considerable number of professionals who agree with the treatment."

Practice Note: Defining Terms "Standard of Care" and "Accepted Medical Standards"

The Western District Court of Appeals in Ladish v. Gordon 87 reversed a verdict for the plaintiff in a medical negligence case because the attorney for the plaintiff did not ask his medical expert to define what he meant by the terms "accepted medical standards" and "standards of care." The court held that unless the defendant's evidence amounts to concession that legal standard is the standard suggested by the plaintiff, an expert's use of terms "accepted medical standards" and "standards of care" do not in and of themselves satisfactorily articulate the appropriate legal standard. M.A.I. 11.06 specifically uses the standard of "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession." 92 The court discouraged the use of shorthand phrases such as "standards of care" and "accepted medical standards" without providing for the jury expert testimony within the precise terms of M.A.I. 11.06. The court stated that "[i]t is necessary in each case that the fact finder be informed as to whether the witness, in offering opinions, is using the standard prescribed by law and not some other standard." 89 Trial practitioners should make it a practice to ask a medical expert to conform his testimony on violation of the standard of care to the exact language of M.A.I. 11.06.

The Court of Appeals for the Southern District, in Glidewell v. S.C. Management, Inc., 90 approved the use by plaintiff's counsel of the following question:

Now, do you have an opinion to a reasonable degree of medical certainty, whether such failure would be medical negligence? And by negligence, I mean the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by those physicians practicing internal medicine?

This formulation appears to effectively and gracefully integrate the required definition of negligence into the basic call for the medical expert's opinion on violation of the standard of care.

Practice Note: Expert Medical Testimony "Within a Reasonable Degree of Medical Certainty"

There is also case authority holding that expert medical testimony is insufficient if it does not indicate that the expressed opinion is given within a reasonable degree of medical certainty, 91 although Missouri case law is not unanimous on this point. 92 The requirement of reasonable degree of medical certainty should logically be held to be a requirement only when an expert is expressing an expert medical opinion about causation or future damages. 93 When a party relies on expert testimony to provide evidence as to causation when there are two or more possible causes, that testimony must be given to a reasonable degree of certainty. 94 It would seem illogical to require reasonable medical certainty as to opinions about standard of care, for instance. The applicable standard of care ought to be objectively ascertainable without any need for assurances of reasonable medical certainty. The applicable standard of care is not an issue related to prediction or probability. Some Missouri appellate decisions, however, have blurred this distinction. 95

One commentator traces the birth of the phrase, "reasonable degree of medical certainty," to Chicago, Illinois, sometime during the years from 1915 to 1930. 96 "While the phrase was generated by the efforts of Illinois attorneys to comply with legal doctrine, litigators in other states adopted this curious phrase through unreflective imitation of models provided in a best-selling manual on trial technique." 97 Indeed, no Missouri case law has been found that provides a definition of reasonable medical certainty. It apparently means whatever the testifying physician thinks it means. 98 Author Peter W. Huber states that "[t]he hermit clinician can usually testify to anything if he holds an M.D. and is willing to mumble some magic words about 'reasonable medical certainty.'" 99

Despite its apparently questionable heritage and viscous definition, Missouri judges have grown up with the phrase "reasonable medical certainty" and probably expect to hear it in medical questioning. Discretion, careful practice and realism probably dictate that the formalistic language "within a reasonable degree of medical certainty" be intoned in all questions calling for a medical opinion of any kind, type or character. 100 At worst, such language would constitute mere surplusage upon appellate review. 101

Conclusion

The medical profession is regulated in two primary ways: (1) directly by state medical boards in licensing and licensing discipline cases, 102 and (2) indirectly by jury verdicts in common law medical malpractice cases. 103 In either of these two regulatory arenas, the essential question of medical competency has been historically cast as a question of conformance to the applicable standard of care. As seen in the above discussion, the two schools of medical thought doctrine, while having an initial appeal from a policy standpoint, would ultimately seem to have contours too "fluid and imprecise" 104 to provide a workable test for an alternative standard of care in medical negligence and licensing discipline cases.

As is the case with the courts recognizing the two schools of medical thought doctrine, current Missouri case law appears to leave a large gray area in the determination of whether an alternative school of medical thought has sufficient bona fides to insulate the practitioner in medical negligence cases and/or professional licensing disciplinary cases. An honest difference of opinion among competent physicians would seem to be a standard significantly lacking in precision as a test for separating legitimate medical modalities from mere quackery. In addition, it would appear that the standard of an honest difference of opinion among competent physicians is qualified by the additional requirement that treatment cannot be against the course recognized as correct by the profession generally.

In summary, it seems that no state has successfully developed an objective, workable test for evaluating whether a particular alternative medicine treatment meets the generally accepted standard of care. Presumably, Missouri appellate courts will have the opportunity to refine or redefine the appropriate legal standards for measuring the legal sufficiency of medical care. With the continued increased public interest in alternative and complementary health care, issues of the permissibility of alternative treatments will no doubt continue to arise both in civil medical negligence cases and in licensing discipline cases. 105

Endnotes

1 Glenn E. Bradford practices as a trial lawyer in the firm of Glenn E. Bradford & Associates, P.C., in Kansas City, with emphasis on plaintiff's personal injury and criminal defense in state and federal court. Mr. Bradford has served as general attorney for the Missouri State Board of Registration for the Healing Arts since 1993.

2 For an excellent review of Missouri law on medical negligence in general, see, W. Dudley McCarter & Marlene E. Ernst, Medical Malpractice, 47 J. Mo. Bar 469 (1991).

3 See, Marjorie M. Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219, 281 (1985).

4 See Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo. App. W.D. 1994).

5 See, e.g., Crump v. Piper, 425 S.W. 2d 924 (Mo. 1968) (sponge left in plaintiff's back following surgery).

6 See Dine v. Williams, 830 S.W.2d 453, 456 (Mo. App. W.D. 1992).

7 Hart v. Steele, 416 S.W.2d 927, 932 (Mo. 1967).

8 Id.

9 Delisi v. St. Luke's Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 173 (Mo. App. E.D. 1985).

10 Ladish v. Gordon, note 2, at 628; see also Gridley v. Johnson, 476 S.W.2d 475 (Mo. 1972); Cebula v. Benoit, 652 S.W.2d 304, 307 (Mo. App.W.D.1983).

11 In the case of Ladish v. Gordon, at Note 2, the Court of Appeals cautioned that the expert witness must at some point define his terms in accordance with the definition of negligence established in the case and M.A.I. 11.06 and not rely on such shorthand phrases as "standard of care."

12 See, James O. Pearson, Jr., Annotation, Modern Status of "Locality Rule" in Malpractice Action Against Physician Who is Not a Specialist, 99 A.L.R.3d 1133, 1139 (1980).

13 Id.

14 476 S.W.2d 475, 483 (Mo. 1972).

15 Marcia Mobilia Boumil & Clifford E. Elias, The Law of Medical Liability in a Nutshell, p. 30-31 (West Pub. Co. 1995) ("The locality rule served primarily as a rule that would limit who could testify as an expert in a medical malpractice case. A physician outside of the same or similar locality would be precluded from testifying because he was thought not to have adequate knowledge of the relevant medical standard for a particular community.")

16 Boumil & Elias, The Law of Medical Liability in a Nutshell, p. 31 (West Pub. Co. 1995).

17 Courts have occasionally rejected industry custom as a defense to a medical malpractice case. See, e.g., Burton v. Brooklyn Doctors Hosp., 452 N.Y.S. 2d 875 (N.Y. 1982).

18 See, e.g., James P. Carter, Racketeering in Medicine: The Suppression of Alternatives 299 (1993). Dr. Carter states that "[a]nother barrier to practitioners of unconventional medicine is traditional tort (civil law) theory, which forms the basis for conventional malpractice suits citing negligence. . . . Under tort theory, in order to recover , the plaintiff must prove that the traditional doctor breached the standard of care. This standard of care is defined by the skill and knowledge normally possessed by the members of that professional trade in good standing in similar communities."

19 There have been cases in which a specific standard of care could not be determined. In such a case, some courts have established the "professional judgment rule," which holds that a physician cannot be held liable for injury only in the absence of good faith or a failure to exercise professional judgment. See, e.g., Jenks v. City of West Carrollton, 567 N.E.2d 1338, 1344 (Ohio Ct. App. 1989), motion overruled, 545 N.E.2d 1284.

20 An important distinction between civil medical negligence cases and professional licensing discipline cases is that it is generally not required that the state medical board establish that the questioned medical care caused injury. See Swope v. Printz, 468 S.W.2d 34, 39 (Mo. 1971) (plaintiff must show that defendant's negligent act or acts caused her resulting pain and suffering).

21 The state's authority to regulate the medical profession is grounded in the Tenth Amendment to the United States Constitution. See, Dent v. West Virginia, 129 U.S. 114, 122 (1889).; Jacobson v. Massachusetts, 197 U.S. 11 (1905).

22 Section 334.100.2(5), RSMo Cum. Supp. 1999. The Supreme Court of Missouri has held that for the protection of the public health and welfare, the Missouri legislature is empowered to regulate the practice of medicine in such a manner as the legislature deems to be proper and wise. State ex rel. Collet v. Scopel, 316 S.W.2d 515 (Mo. 1958).

23 In theory, a single instance of ordinary negligence is not a basis for discipline under the Healing Arts Practice Act. However, § 334.100.2(5) does provide that repeated negligence is a basis for disciplinary action. Repeated negligence is defined as "the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member [sic] of the applicant's or licensee's profession." Take out the word "repeated" and you have the M.A.I. definition of negligence, as set out in M.A.I. 11.06. "The term 'negligent' or 'negligence' as used in this [these] instruction[s] means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession."

24 Cline v. William H. Friedman & Assocs., 882 S.W.2d 754, 758 (Mo. App. E.D. 1994).

25 Id.

26 Dotson v. Hammerman, 932 S.W.2d 880, 884 (Mo. App. E.D. 1996).

27 Boehm v. Pernoud, 19 S.W. 3d 736, 739 (Mo. App. E.D. 2000); Dine v. Williams, 830 S.W.2d 453, 457 (Mo. App. W.D. 1992).

28 Hurlock v. Park Lane Medical Ctr., Inc., 709 S.W.2d 872, 874 (Mo. App. W.D. 1985); Boehm v. Pernoud, 19 S.W. 3d 736, 739 (Mo. App. E.D. 2000).

29 Lori Rinella, The Use of Medical Practice Guidelines in Medical Malpractice Litigation–Should Practice Guidelines Define the Standard of Care?, 64 UMKC L. Rev., 337, 355, footnote 101 (1995).

30 See, e.g., Lori Rinella, The Use of Medical Practice Guidelines in Medical Malpractice Litigation–Should Practice Guidelines Define the Standard of Care, 64 UMKC L. Rev., 337, 355 (1995).

31 See Douglas Rader Brown, Comment, Panacea or Pandora's Box: The "Two Schools of Medical Thought" Doctrine after Jones v. Chidester, 44 Wash. U. J. Urb. & Contemp. L. 223 (1993).

32 See, e.g., Hood v. Phillips, 554 S.W.2d 160, 163 (Tex. 1977).

33 See, Michael H. Cohen, Holistic Health Care: Including Alternative and Complementary Medicine in Insurance and Regulatory Schemes, 38 Ariz. L. Rev. 83 (1996).

34 Congress in 1992 set up the Office of Alternative Medicine in the National Institutes of Health. Congress in 1998 established the National Center for Complementary and Alternative Medicine (NCCAM), a part of the National Institutes of Health (NIH), to serve as a clearing house for information about alternative and complementary medicine. The NCCAM website is found at http://nccam.nih.gov/nccam.

35 "The American Holistic Medical Association (AHMA) defines holistic medicine: 'This emerging medical specialty is an art and science that treats and prevents disease, while focusing on empowering patients to create a condition of optimal health. Far more than the absence of illness, this state of health is a dynamic balance of the physical, environmental, mental, emotional, social, and spiritual aspects of an individual. As both a healer and health educator, the holistic physician, in partnership with the patient, addresses the causes of disease in addition to treating its symptoms.'" (American Holistic Medical Association brochure) (quoted in Mary Morton & Michael Morton, The M.D. as an Alternative Practitioner ((excerpted from Five Steps to Selecting the Best Alternative Medicine, New World Library 1997) (http://www.healthy.net/library/articles/morton/md.htm).

36 "System of medicine, Chinese and Japanese, that balances chi flow through the body by inserting fine needles into meridian points. Meridians are lines of chi flow in the human body, sickness occurs when the flow is blocked and deficiencies or excessive amounts of chi occurs. For more information, visit Acupuncture.com." Taken from Holistic Medicine.Com, website (Definitions) (http://www.holisticmedicine.com/infomain.htm).

37 At its most basic, the practice of Aromatherapy is the use of "essential oils" to "restore or enhance mental, emotional, physical or spiritual health." It is about balance in the same way that illness is about imbalance. It is the return to the centre, the essence of health. Robert Todd Carroll, The Skeptics Dictionary, available on World Wide Web at (http://www.skepdic.com/ aroma.html).

38 "Rolfing is a type of body therapy that was developed by Dr. Ida Rolf. Brilliantly conceived, Rolfing seeks to systematically unwind chronic strain and bring the client into easier and more natural ways of being, standing, moving, and so on. Dr. Rolf developed what she called the 'ten series'- which is a series of ten Rolfing sessions. Each session is unique and each one builds on the previous session in a logical and natural fashion. The results of the series vary from person-to-person, but those often reported are: increased comfort in the body, greater energy, more mental clarity, increased somatic awareness or increased 'feeling' in the body, greater flexibility (both physical and emotional), and greater capacity for expression." (http://www.holisticmedicine.com/infomain.htm).

39 "People train in techniques to improve their health by learning to recognize and then manipulate signals sent by their own bodies. For more information, visit the Association of Applied Psychophysiology and Biofeedback." Taken from Holistic Medicine.Com, web site (Definitions) (http://www.holisticmedicine.com/infomain.htm).

40 See, Michael H. Cohen, Holistic Health Care: Including Alternative and Complementary Medicine in Insurance and Regulatory Schemes, 38 Ariz. L. Rev. 83, 98-109 (1996).

41 "Over 300 different alternative approaches have been identified and categorized by the National Institute of Health's Office of Alternative Medicine." Lenore Howe, An Overview of Alternative/Complementary Medicine, published at (http://www.wellweb.com/ALTERN/overview.htm#why).

42 See, Michael H. Cohen, Holistic Health Care: Including Alternative and Complementary Medicine in Insurance and Regulatory Schemes, 38 Ariz. L. Rev. 83 (1996). See also Dale R. Agthe, Annotation, Regulation of Practice of Acupuncture, 17 ALR4th 964 (1982); William H. Danne, Jr. Annotation, Acupuncture as Illegal Practice of Medicine, 72 ALR3d 1257 (1976); J.R. Monaghan, Annotation, Hypnotism as Illegal Practice of Medicine, 85 ALR2d 1128 (1962); Helen D. Brooks, Annotation, Regulation of Masseurs, 17 ALR2d 1183 (1951); James T. Hendrick, Forms of Limited Practice Under the Medical Practice Act, 26 U. of Miami Law Rev. 804 (1972).

43 The medical boards of the various states have sometimes sought to discipline physicians for using treatments that are not generally accepted by the medical community at large. The disciplinary actions of several states are reported by a website managed by Monica Miller, Health Lobby at (http://www.healthlobby.com/cacases.html).

44 Section 334.100.2(5), RSMo Cum. Supp. 1999.

45 Section 334.100.2(5), RSMo Cum. Supp. 1999.

46 See, Cohen, M.H., Complementary and Alternative Medicine Policy: The Future of Regulation, 5:1 Alt.& Comp. Therap. 50 (Feb. 1999).

47 The alternative medicine movement has sought medical freedom legislation from state legislatures around the country. See, e.g., the legislation proposed in the state of Minnesota at (http://www.minnesotanaturalhealth.org/billtext.htm). These proposed bills generally support a patient's right to seek and receive unconventional medical treatment. Several states have passed medical freedom bills. See (http://www.healthlobby.com/statelaw.html).

48 79 Pa. Super. Ct. 117 (1922).

49 Id. at 119.

50 213 A.2d 588 (Pa. 1965).

51 213 A.2d 588, 592 (Pa. 1965).

52 610 A.2d 964, (Pa. 1992).

53 610 A.2d 964, 965 (Pa. 1992).

54 Id.

55 610 A. 2d 964 at 969; see Comment, Panacea or Pandora's Box: The "Two Schools of Medical Thought" Doctrine after Jones v. Chidester, 44 Wash. U. J. Urb. & Contemp. L. 223, 232 (1993).

56 610 A. 2d at 969.

57 554 S.W.2d 160 (Tex. 1977).

58 Jackson v. Burnham, 39 P. 577, 580 (Colo. 1895).

59 Snow v. Bond, 438 S.W.2d 549, 550 (Tex. 1969)

60 554 S.W.2d 160 at 165.

61 Id.

62 Id.

63 In Henderson v. Heyer-Schulte Corp. of Santa Barbara, 600 S.W.2d 844 (Tex. Civ. App. 1980), the Texas Court of Appeals applied Hood v. Phillips in the case of a surgeon who had surgically implanted a silicon breast implant and had used a technique of slitting the envelope to allow the silicon gel to escape. Plaintiff brought a medical negligence action because of repeated problems with the development of siliconomas, or small lumps or nodules under the skin of her chest and abdomen. Plaintiff challenged the surgeon's operative method of slitting the gel bag. The Court of Appeals held that the Hood v. Phillips test applied. The Court of Appeals noted that the Texas Supreme Court had expressly rejected the respectable minority and considerable number tests in Hood v. Phillips, opting instead for the standard of a physician who undertakes "a mode or form or treatment which a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances." 600 S.W.2d at 847.

64 554 S.W.2d at 164.

65 275 F. Supp. 897 (D. Ariz. 1967).

66 275 F. Supp. at 899 (finding of fact number 14).

67 Id.

68 Id.

69 275 F. Supp. at 900 (finding of fact number 18).

70 219 P. 2d 79 (Wash. 1950).

71 219 P.2d at 85-86 (emphasis supplied).

72 California Book of Approved Jury Instructions (BAJI), BAJI 6.03. See www.netlawlibraries.com/jurinst/ji_006.html.

73 In physician discipline cases the licensee/respondent is often arguing simply that the accepted standard of care is wrong. In effect, the licensee/respondent is asking the administrative tribunal or court to reverse the findings of medical science itself.

74 M.A.I. 11.06; Gridley v. Johnson, 476 S.W.2d 475 (Mo. 1972).

75 Hurlock v. Park Lane Medical Ctr., 709 S.W.2d 872, 883 (Mo. App. W. D. 1985) (the court quotes from Haase v. Garfinkel, 418 S.W.2d 108 (Mo. 1967)); Williams v. Chamberlain, 316 S.W.2d 505, 510 (Mo. 1958).

76 See Ladish v. Gordon, 879 S.W.2d 623 (Mo. App. W.D. 1994); Haase v. Garfinkel, at 114. In Bailey v. St. Louis-San Francisco Ry. Co., 296 S.W. 477, 479 (Mo. App. S.D. 1927), the court said: "Physicians and surgeons must be allowed a wide range in the exercise of their judgment and discretion. The science of medicine is not an exact science. In many instances there can be no fixed rule by which to determine the duty of a physician, but he must often use his own best judgment and act accordingly. By reason of that fact the law will not hold a physician guilty of negligence as long as he uses his best judgment, even though his judgment may prove erroneous in a given case, unless it be shown that the course pursued was clearly against the course recognized as correct by the profession generally."

77 Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 883 (Mo. App. W. D. 1985) ("[a]ppellant's reliance on the testimony of certain doctors as to what their individual custom or practice was under comparable circumstances is misplaced. Mere evidence that the conduct of a physician or surgeon did not measure up to the standards of an individual member of the profession, as opposed to the standards of the profession at large, does not constitute substantial evidence of probative force to support a submission of negligence in a medical malpractice case as individual standards may be higher or lower than the standards of the profession as a whole."); Mills v. Redington, 736 S.W. 2d 522 (Mo. App. E. D. 1987).

78 Grainger v. Still, 85 S.W. 1114 (Mo. 1905).

79 See notes 47 and 48.

80 See Comment, Panacea or Pandora's Box: The "Two Schools of Medical Thought" Doctrine after Jones v. Chidester, 44 Wash. J. U. Urb. and Contemp. L. 223 (1993). The author of this article argues that the qualitative standard of Hood v. Phillips is preferable to the quantitative standard of Jones v. Chidester. "The better-reasoned view is the qualitative 'reasonable and prudent doctor' standard articulated in Hood. The 'reasonable and prudent doctor' standard is preferable because is allows for the use of 'experimental' methods of treatment. By quantifying medical acceptance, the 'considerable number' and 'respectable minority' standards unfairly bias the jury against medical situations that demand experimentation. The Hood standard properly focuses the issue on whether the physician acted appropriately under the circumstances. Therefore, the 'reasonable and prudent doctor' standard allows for more intellectual flexibility without disregarding the quality concerns of the Chidester court." 44 Wash. U. J. Urb. & Contemp. L. at 233-34.

81 Id., at page 223. See, also, Mary S. Newbold, Medical Malpractice Law–Pennsylvania's "Two Schools of Thought" Doctrine Revisited: Definition and Application Clarified–Underlying Goal Thwarted–Jones v. Chidester, 610 A.2d 964 (Pa. 1992), 66 Temp. L. Rev. 613 (1993).

82 Jones, 610 A.2d at 969; Bonavitacola v. Cluver, 619 A.2d 1363, 1368 (Pa. Super. Ct. 1993); Tesauro v. Perrige, 650 A.2d 1079, 1082 (Pa. Super. 1994).

83 Jones, 610 A.2d at 969.

84 275 F. Supp. 897 (D. Ariz. 1967).

85 619 A.2d 1363 (Pa. Super Ct. 1993).

86 650 A.2d 1079 (Pa. Super Ct. 1994).

87 879 S.W.2d 623 (Mo. App. W.D. 1994).

88 M.A.I. 11.06 (1996).

89 879 S.W.2d at 634. The court cites Dine v. Williams, 830 S.W.2d 453, 456 (Mo. App. W.D. 1992).

90 923 S.W.2d 940, 948 (Mo. App. S.D. 1996).

91 Turnbo v. City of St. Charles, 932 S.W.2d 851 (Mo. App. E.D. 1996). See generally, Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L. Rev. 380 (1998).

92 See, e.g., Kircher v. Purina Mills, Inc., 775 S.W.2d 115, 120, ftnt. 2 (Mo. 1989) ( in formulating his opinion, Dr. Wright did not use the term "reasonable medical certainty". Use of this phrase, however, is not mandated and does not affect the substantiality of his testimony. Schiles v. Schaefer, 710 S.W.2d 254, 262 (Mo. App. E.D. 1986); Miller v. Weber, 688 S.W.2d 389, 391 (Mo. App. E.D. 1985).

93 Cf., Holmes v. Gamewell, 712 S.W.2d 34, 37[7] (Mo. App. E.D. 1986) (objection to testimony on causation not based on standard of reasonable medical certainty waived); Wagner v. Piehler, 879 S.W.2d 789 (Mo. App. W.D. 1994).

94 Wyckoff v. Davis, 297 S.W.2d 490, 494 (Mo.1957).

95 Cf., Koontz v. Ferber, 870 S.W.2d 885, 890 (Mo. App. W.D. 1993). "Defendants objected on the ground that the question called for speculation and conjecture. The trial court sustained the objection. Plaintiffs fail to explain to this court why such testimony was not speculative. The physician's opinion that the lab reading 'may' reflect acidosis is not the same as an opinion, to a reasonable degree of medical certainty, that the lab reading does reflect acidosis. It is not clear from the record what Dr. Blum meant. He may have meant such a reading was consistent with the possibility of metabolic acidosis, an opinion which, if expressed to a reasonable degree of medical certainty, would presumably be admissible. However, it is at least equally likely that he meant that one cannot draw specific conclusions from the reading. Our inability to know what Dr. Blum meant leaves us unable to find an abuse of discretion in excluding the evidence. Moreover, plaintiffs have not explained to this court why this testimony was of significance. Plaintiffs have not shown that the trial court abused its discretion in excluding this deposition passage."

96 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Maryland L.Rev. 380, 381 (1998).

97 Id. at 381 (Goldstein's Trial Technique).

98 "A glaring feature of the opinions commenting upon the meaning of 'reasonable certainty' is the universal confession that the meaning of the phrase is not self-evident. No court has had the audacity to suggest that the phrase is clear and simple on its face. Inevitably, the courts have a difficult time explaining the meaning of the phrase. This realization exasperates the practitioner who finds the trial court perpetuating dialogue and instructions voiced in terms of reasonable certainty." James E. Hullverson, Jr., Reasonable Degree of Medical Certainty: A Tort et a Travers, 31 St. Louis U. L. R. J. 577, 588 (1987)

99 Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom, p. 177 (Basic Books) (1991).

100 "The standards for medical witnesses are more biased still; the hermit clinician can usually testify to anything if he holds an M.D. and is willing to mumble some magic words about 'reasonable medical certainty.'" Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom, p. 177 (Basic Books) (1991).

101 See, e.g., State v. Kleypas, 602 S.W.2d 863, 869 (Mo. App. S.D. 1980).

102 The administrative law judge in a disciplinary action against a physician in the state of California (Medical Board of Calif. Robert Sinaiko, M.D., No. 13- 93-28495, OAH No. N 9611106) framed the main issues in the case in these words:

This case is essentially about setting appropriate limits of medical practice in California at the "fringes" of medicine. The experts testified about the conflict in medicine between the State of Medical Science vs. the State of Medical Art. It may be better to think of this dichotomy as a continuum where a range of certainty exists. The evidence established that the pure science part of medicine is between 15% and 30%. That is where there is a proven answer based on the scientific method using controlled, double blind, repeatable experiments that result in statistically significant data. The art part of medicine requires the use of educated judgment using a risk/benefit analysis. The physician must analyze the condition of the patient and assess the risk of any proposed treatment method while keeping in mind the chances of possible benefit. In both the practice of the art and science of medicine cause and effect is the key along with the exercise of good judgment. The medical hypothesis to be tested is often designed to answer a cause and effect question. That is the definition of experimentation.

The full opinion is available at (http://www.legalfund.org/decision_recon.html#begin).

103 Mehmet C. Oz, M.D., Book Review, Complementary & Alternative Medicine: Legal Boundaries and Regulatory Perspectives, 20 J. Legal Med. 141, 147 (1999).

104 Michael H. Cohen, Complementary and Alternative Medicine, Legal Boundaries and Regulatory Perspectives 58 (1998).

105 The author would like to thank attorney Nancy E. Kenner of the Kansas City law firm of Kenner, James, and Kavanaugh, P.C., for her editorial assistance in the preparation of this article.

JOURNAL OF THE MISSOURI BAR
Volume 56 - No. 6 - November-December 2000