[The physician's liability and required precaution].

Abstract

Physicians are worried about increasing malpractice litigation. It is necessary to cope with this situation in a way that damages neither the welfare of the patient nor the rights of the physician. A constitutional state therefore requires legal control of the conduct of physicians by judicial non-medical authorities. In law the physician is only liable for deliberate or negligent malpractice, i.e., for the lack of due diligence. The criterion is the generally accepted practice in his field. To establish this standard, the judge depends on the medical expert. The essential difficult problem is to establish the standard and to determine what constitutes a reproachable deviation. Examples include the adoption of previous diagnosis by another physician, the choice between possible therapies and whether to treat as an out-patient. In regard to damages a reasonable average is required, taking into account a physician's training and technical equipment available to him. If strict liability combined with an insurance scheme were introduced, there would be the same problems, because the judge must distinguish between damages caused by the physician and the natural progress of an illness.