Ethical Malpractice

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws analogies to arguments that have been raised in the context of legal malpractice, informed consent, and clinical practice guidelines. The Article concludes that while standards of medical ethics may be relevant to assessing the standard of care in medical malpractice cases, it may be premature to treat ethics violations as prima facie grounds for liability.