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This chapter discusses the legal standards for whether a physician has been negligent; that is, whether there has been medical malpractice. Much of the litigation over scientific and technical issues, including medical practice, is driven by a lack of accepted standards to judge the defendant's conduct. Lawyers and physicians must share the blame for this state of affairs. Physicians have been reticent to set clear standards for medical practice. As judges, lobbyists, and legislators, lawyers have made it increasingly easy for quacks and charlatans to be presented as credible experts on science and medicine.[8]

The second problem is medical faddism. Some physicians flock to new and unproved treatments or marginal therapies. The main diagnostic indication may be a patient or insurance company willing to pay for them. Physicians and medical societies who do not actively oppose this faddism are complicit in it. They are ignoring the duty of self-governance that has been given to the medical profession. (See Chapter 18.) If courts seem unable or unwilling to distinguish between true authorities and self-styled experts with dangerous and unorthodox opinions, it is partially due to the medical profession's squandering of its moral authority.

[8]Huber PW: Galileo's Revenge: Junk Science in the Courtroom. 1991.

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