What factors should a physician consider on whether to use a new medical innovation on a patient? Of course, the potential benefits and risk of the innovation to the patient matter most. But another factor could play a role in the physician’s decision: malpractice liability. Specifically, (i) is the use of the innovation more likely to get the physician sued if something goes wrong and (ii) how much money would they owe if they are sued?
A paper by Mushinski and Zahran (2026) aims to examine the role of malpractice on physician decisions. Specifically, they look at state-by-state changes in laws related to what defines customary care and whether there are caps on malpractice damages. What is customary care (CC)?
The CC standard is “defined as the customary practice of physicians in good standing [within] the profession, or a significant minority of such physicians”… Physicians who deviate from a CC standard face a higher probability of being found to have breached their duty of care to a patient and to have engaged in malpractice. In some states, the CC standard is established with reference to local customary practices (a “Local” standard) and in other states with reference to national customary practices (a “National” standard)…
Because National standards tend to change only after strong evidence in favor of change has accumulated, physicians in states with a National standard may be less likely to adopt new information than physicians in states with a Local standard (which provides greater flexibility in physician adoption of new, emerging information)
The authors look at changing rates of use of vaginal births after cesarean sections (VBACs) when there were changes in guidance from the American College of Obstetricians and Gynecologists (ACOG) depending on whether the state malpractice laws relied on national vs. local CC guidance (and also whether there was malpractice payment caps). They use data birth data from the Natality Files between 1990 and 2002 and used data on medical malpractice tort reforms from the seventh edition of the Database of State Tort Law Reforms. Use of a local or a national standard by state came from the online Replication package associated with M. Frakes (2013).
The authors find that:
…physicians whose duty of care is determined by standard practices nationwide are less likely to adopt innovations which have not yet been incorporated into those practices and more likely to adopt innovations once they are incorporated into those practices. Caps may moderate these effects.
You can read the full article here.
