Medical Malpractice and the Judicial Function in Comparative Perspective

Abstract

In the light of increasing misunderstanding between the medical and legal professions, this paper seeks, by means of comparative analysis to elucidate the central concerns of the law in regulating the provision of medical treatment and the doctor-patient relationship. The law in most jurisdictions seeks to ensure the full and consistent protection of the patient's rights. It will be seen that this goal requires that objective and judicially determined standards of care be imposed upon doctors. In relation to consent to medical treatment the primary value of individual autonomy implies that the informational needs of the particular patient must determine the legal standard of disclosure. In so far as English judges have privileged the medical profession, above all others, by unquestioningly ratifying its practices in relation to treatment and disclosure, they may be said to have abandoned their constitutionally mandated tasks of adjudication and the development of the law on an objective basis. This position is at odds with that in most other common law countries and is notably isolated within the context of the European Community.