Altering the Applicable Standard of Care

Abstract

Identifying the essential characteristics that distinguish a profession from other service occupations is a common exercise. Perhaps a better way to judge the degree of professionalism, however, is with reference to the ease or difficulty of precisely specifying a provider's performance obligations in advance of the provision of services. For most medical services, the range of possible exigencies is so great that no imaginable contract or regulation could explicitly state the physician's duty under all of them. Efficiency in the delivery of such services therefore requires some departure from a pure contractual or regulatory model. Accordingly, society imposes special ethical and legal requirements on persons who are regularly employed by clients, not to bring about a specific, definable result, but to exercise specialized knowledge and skills on their behalf.' Tort law recognizes the inefficiency that can arise because of the disadvantages under which consumers labor in dealing with professionals by making certain obligations to clients an incident of professional status.2 The