Standards of Care in Medical Malpractice Cases: Respectable Minority vs. Two Schools of Thought

What constitutes reasonable care and treatment in the context of a doctor-patient relationship? The answer to this question has evolved in complex ways in recent decades, particularly with respect to inherently risky procedures, innovative treatments, and care for advanced-stage diseases. Since standard of care is the foundation of every medical negligence claim, the standard to which medical experts testify is paramount to case success.

Traditionally, the courts sought to resolve disputes over standards of care in malpractice cases by applying the “locality rule,” meaning a physician’s conduct would be evaluated against the conduct of similar practitioners in the community or within a reasonable vicinity.

As modern standards of care evolve and disseminate beyond local communities and regions, most courts have taken a more universal view of such standards in medical malpractice cases. This stance allows courts to consider the testimony of expert witnesses who reside outside of the community or state provided that the expert can establish their own familiarity with the local standards to which they will testify. With these changing views, however, have come new questions regarding two key doctrines in medical malpractice cases—namely, the “respectable minority” rule and the “two schools of thought” doctrine.

Here’s why and how the courts have attempted to address these issues through case law.

The “Respectable Minority” Rule

Often applied in malpractice cases filed against specialists, the “respectable minority rule” can shield a defendant from liability if the defense can demonstrate that a medical professional’s conduct is acceptable or supported by a respectable minority of practitioners, even if the conduct or treatment differs from what most other practitioners may do.

Effectively, this rule divorces notions of standard of care from the majority, creating defense avenues for both common procedures and highly specialized, risky, and/or experimental treatments.

At the same time, the definitions of “Respectable Minority” and “support” are ambiguous. Additionally, issues of informed consent are not always cut-and-dry, especially when there is conflicting evidence regarding what patients or their surrogates were told, or should have been told, about the risks of a procedure or treatment option when they consented to it.

Under this doctrine, jurors have the task of determining whether a minority standard falls into the realm of acceptable and proper rather than an unacceptable fringe.

The “Two Schools of Thought” Doctrine

As another method of evaluating standards of care in medical malpractice cases, the “Two Schools of Thought” doctrine is often applied when the allegations involve a physician’s error in choosing between various treatment alternatives.

Under this doctrine, physicians can defend against negligence claims by demonstrating that:

1. They exercised sound judgment when deciding between two or more different treatment options, and
2. They adhered to treatment options that are recognized as acceptable by a “considerable number” of colleagues who are in the same (or similar) practice or specialty and who are in good standing.

When malpractice cases involve “Two Schools of Thought,” the notion of “considerable number” can be a key point of dispute between the defense and the plaintiff. In theory, this doctrine puts juries in a position to decide, among other things, whether a considerable number of qualified specialists support the conduct or treatment in question.

How Jones v. Chidester Changed the Respectable Minority Rule & the Two Schools of Thought Doctrine

Various malpractice cases, some going back decades, have asked the courts to clarify the ambiguities in the Respectable Minority and Two Schools of Thought doctrines. One of the most seminal cases in shaping the interpretation of these doctrines has been Jones v. Chidester (Case No. 89-345).

Background

Jones v. Chidester centers on medical malpractice allegations dating back to November 1979. According to the facts of the case, the defendant used a tourniquet during orthopedic leg surgery. The plaintiff alleged that the use of the tourniquet caused nerve damage and a condition known as “drop foot.”

During the June 1988 trial, the plaintiff’s expert witnesses testified that the use of the tourniquet was not an acceptable practice for this type of surgery while the defense expert stated the opposite under oath, affirming the use of tourniquets as acceptable in this type of orthopedic surgery. Following closing arguments, the court gave jurors the following instructions:

Ladies and gentlemen, I instruct you upon this additional principle of law known as the two schools of thought doctrine. This principle provides that it is improper for a jury to be required to decide which of two schools of thought as to proper procedure should have been followed in this case, when both schools have their respective and respected advocates and followers in the medical profession. In essence, then, a jury of laypersons is not to be put in a position of choosing one respected body of medical opinion over another when each has a reasonable following among the members of the medical community.

Thus, under the two schools of thought doctrine, a physician in the position of Dr. Chidester will not be held liable to a plaintiff merely for exercising his judgment in applying the course of treatment supported by a reputable and respected body of medical experts, even if another body of medical experts’ opinion would favor a different course of treatment. Those are the two schools of thought, and that is the two schools of thought doctrine.

The jury came back with a verdict in favor of the defendant. The plaintiff appealed, requesting a new trial due to the court’s “reversible error” with the jury instructions. Upon appeal, the plaintiff argued that the court had erred by including the “reputable and respected” language, instead of the “considerable number” language, in the jury instructions.

PA High Court’s Groundbreaking Ruling

On June 17, 1992, a decision in Jones v. Chidester was issued by the Supreme Court of Pennsylvania. Written by Justice Nicholas P. Papadakos, the ruling reversed the jury’s decision for the defendant and remanded the case for a new trial. The decision also clarified some confusion over the respectable minority rule versus the school of two thoughts doctrine while intentionally refusing to address an enduring ambiguity.

In the high court’s opinion, Justice Papadakos pointed out the “confusion and contradiction in the use of these standards—a confusion apparent even between the trial court’s charge to the jury (“reputable and respected”) and its subsequent opinion denying the post-trial motion (“considerable number”).” Noting it was incumbent upon him to resolve the discrepancies, Justice Papadakos opined that:

The “two schools of thought doctrine” provides a complete defense to malpractice. It is therefore insufficient to show that there exists a “small minority” of physicians who agree with the defendant’s questioned practice. Thus, the Superior Court’s “reputable and respected by reasonable medical experts” test is improper. Rather, there must be a considerable number of physicians, recognized and respected in their field, sufficient to create another “school of thought”…We, therefore, provide the following as a correct statement of the law:

Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.

While the opinion did not “attempt to place a numerical certainty on what constitutes a considerable number,” it did affirm three crucial points:

1. The burden of proof for the two schools of thought argument rests with the defense.
2. Expert witnesses are pivotal in cases that involve the two schools of thought doctrine. Specifically, the ruling stated that “the proper use of expert witnesses should supply the answers. 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.’”
3. The jury should “determine whether they believe that there are two legitimate schools of thought such that the defendant should be insulated from liability.”

With this, Justice Papadakos essentially collapsed the Respectable Minority and Two Schools of Thought doctrines into a single legal theory. He also gave new importance and weight to medical expert testimony in these cases.