Legal precedents involving “standard of care” and breach of duty have significantly influenced how physicians practice. A brief, plain-language summary + the implications for all of us.
Knowing how a dysfunctional system developed and was sustained provides important insight into how to build and participate in models that avoid similar pitfalls.
In the Substack app, click the play button at the top of a post to start narration. To adjust audio speed, tap the playback bar at the bottom of your screen.
Synopsis of this Post
When we better understand how a dysfunctional system arose and has been sustained, we gain insight into how to build and participate in models that avoid similar pitfalls.
Legal precedent is a major factor in defining the standards by which professionals are held accountable. Because past cases inform future liability, professionals will naturally adopt more standardized or defensive practices to avoid legal exposure. Precedents involving “standard of care” and breach of duty have significantly influenced 1) how physicians practice, and 2) the state of establishment medicine as a system. This easily digestible overview provides important insight into why mainstream medicine has developed the way it has, demonstrating that physicians have been slaves to a corrupted system, and steeped in legal threat and uncertainty.
Yesterday’s Post
My apologies — yesterday’s post was intended to be fully public but wasn’t. I’ve now corrected that so it can be freely shared. It brings forth subjects and sources that are heavily suppressed and deserve broader visibility, especially in the comprehensive view I’ve provided there, which curates evidence from more than 70 references:
Root Causes of Medicine’s Systemic Harms
When we better understand how a corrupt and failed system arose and has been sustained, we gain insight into how to build and participate in models that avoid similar pitfalls.
We can see at least two root causes of establishment medicine corruption and failure*:
The monopolization of medical schools and professional organizations that began in 1910, leading to a period of more than 100 years of corruption by industry.
Legal threat and uncertainty. (See below.)
*Verifiable evidence curations on the corruption and failure of establishment medicine: It has objectively failed, is verifiably corrupt, is not about health, but about business, is not evidence-based, causes harm, is based on corrupt strategies, has a long history of stifling treatments that don’t benefit industry, and uses an irrational diagnosis system.
Legal Precedent and Its Impact on Physician Practice
Legal precedent is a principle or rule established in a previous court decision that is used as a standard for deciding similar future cases. In common law systems such as the U.S., U.K., Canada, Australia, New Zealand and Ireland, courts generally follow earlier decisions when the facts and legal issues are comparable. Legal precedent plays a major role in shaping how regulated professions operate, including medicine, law, engineering, and finance. Courts help define what counts as “reasonable” or “acceptable” professional behavior.
Because past cases inform future liability, professionals will naturally adopt more standardized or defensive practices to avoid legal exposure.
Legal precedents around “standard of care” and breach of duty — and how they are related to medical malpractice law — have played a major role in shaping how physicians practice, and the state of establishment medicine as a system.
This provides important context and insight into why mainstream medicine has developed the way it has.
Summary of Legal Precedents for Physicians: Legal Threat, Disempowerment, Ambiguity
According to the 2011 report in PubMed (excerpted and linked below), the legal environment in which physicians practice has been characterized by the following:
At times, courts have effectively required physicians to conform to “custom” which in a legal context refers to how “others in the business are commonly practicing.” As a result of these cases, doctors are pressured to be virtual slaves to a system, defined by whatever their “business” as a whole is doing.
After 1974, legal precedent became unclear with “standard of care” no longer consistent, described as “continually changing and decided on a case-by-case basis.”
Thus, any medical decisions — whether deviations from “custom” or not, and whether justified or not — can be subject to legal scrutiny.
What is “custom” in medicine?
The business of medicine in the U.S. alone involves more than a million physicians (in 2024) and “more than 37 million citations for biomedical literature (as of November 2024 in PubMed).
How, then, is an individual doctor reasonably able to stay up-to-date on what “others in the business are commonly practicing”?
Where does critical thinking fit in with “custom”?
While the climate before 1974 was legally safer for doctors, neither before nor after that time is it clear how a medical doctor could have been free to think critically about the situation at hand, implementing the best solution that might require unique combinations or new solutions — since, by definition, such individualizing and leadership is contrary to doing what is customary among millions of physicians.
Outcomes: Between a Rock and Hard Place
Given ongoing legal ambiguity, an important question arises: are physicians expected to strictly follow established norms, or to exercise individualized judgment?
The answer appears to be both* with clinical decisions being subject to court interpretation.
Physicians are expected to adhere to norms, yet standardized norms cannot account for the full range of individual circumstances, nor do they enable or encourage innovation or adaptive problem-solving.
Courts judge physicians based on norms, but also might determine in specific cases that norms are changing. (Who thinks that courts are an effective way to determine what is customary, how that is changing, whether it should be changing, and what should be applied in an individual case?)
In reality, physicians face more risk from legal scrutiny than from client results and satisfaction.
*See source excerpt below.
Medicine’s “Big Stick”: Physicians Have Been Slaves to a Corrupted System, and Steeped in Legal Threat and Uncertainty
Such a precarious legal environment encourages the growth of centralized bodies — such as the American Medical Association, the Centers for Disease Control, and the National Institutes of Health — to advise (dictate) protocols to be used by virtually all medical doctors. These organizations are vulnerable to corruption — in fact,
