Home > Journals > WMLR > Vol. 66 (2024-2025) > Iss. 3 (2025)
William & Mary Law Review
Abstract
For over a hundred years, it has been well-accepted among tort scholars that physicians—as one of the legally recognized professions— determine their own customary practices. Within tort law, and medical malpractice more specifically, customary practice establishes whether physicians breach or uphold the required standard of care toward their patients. The results of our hand-coded examination of decided cases and statutes show a more complex picture. While some states have endeavored to shift the standard away from professional custom, it continues to play a critical, and in many cases a determinative, role in establishing physician liability in most states.
Using illustrative case studies, we demonstrate how this outsized role of customary practice may undermine the ability of tort law to protect patients from harm. Customary practice is shaped by a variety of factors, including physician education, scientific studies, and government regulation. Pharmaceutical companies influence these factors to alter physician practices and expand markets for their drugs, often at the expense of patient and public health. This industry pressure directly influences whether a physician is viewed as breaching their legal standard of care, undermining tort law as a form of private regulation of prescribing practices.
To address this problem, this Article argues for a shift in tort doctrine— the explicit abandonment of the rule that customary practice determines breach for prescribing practices, and a move to a reasonableness standard under which professional custom is only one aspect of determining breach. We address the doctrinal and medical benefits of such a shift and conclude that it is essential to the integrity of the private regulation of pharmaceuticals. Our thesis and arguments have significant implications for the role of custom in medicine more generally and for other legally recognized professions.
