Reviewing the judicial quest for reliable boundary vehicles: A brief history of judicial attempts to coordinate law and medicine in the context of malpractice litigation

This paper proposes as a research approach for new governance the identification of boundary vehicles (BVs) between different bodies of professional knowledge. The concept of BVs refers to physical or conceptual constructions, such as documents or theories, that can simultaneously trigger interpretations/reactions from multiple professional groups. The mediating effect of such vehicles opens up the possibility to coordinate cross-professional behaviors. To prove the viability of this approach, this paper selects the doctrine defining the standard of care in malpractice litigation as an example of BVs that trigger responses from both legal and healthcare systems. More specifically, this paper reviews the American history of malpractice litigation. By doing so, the author shows that the court has long been trying to develop legal doctrine that could serve as reliable boundary vehicles for the purpose of coordinating law and medicine around the proper level of care. The history started with the traditional yet still influential doctrine of local customs. By adopting this doctrine, the court sends physician signals that physicians can avoid tort liability by adhering to the norms of practice in their respective communities. Many have criticized, however, that the reliance on local customs promotes the delivery of sub-optimal care because local customs might not be the best possible care currently available. Reliance on local customs can also lead to the problem of battle of experts, because experts, such as lawyers and doctors, may make decisions based on the best interest of their clients/patients rather than relying on the latest scientific evidence. In response, three judicial or statutory alternatives have been proposed, including the proposal of judges as gatekeeper for valid evidence, replacing local customs with the “reasonable physician,” and substituting national best practices for local customs as the BVs. Each alternative brings its own promises, but none has really solved the problem of miscommunication between law and medicine. The paper concludes by pointing out that the potential of the third alternative, substituting best practices for local customs, has yet to be fully realized, as the Affordable Care Act (ACA) offers new opportunities for shifting away from local customs to national best practices as preferred BVs. To fully institute new best practices, however, it is critical for medical professionals to actively engage the legal community. By developing and adhering to consensus-based best practices, the medical community can help lawyers develop clearer and more predictable standards to assess the proper level of care.