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When law regulates a profession, where does it get its standards? Largely from the profession. Members of professions acquire esoteric and abstract knowledge through formal education and the experience of practice. They use professional judgment in applying this knowledge to each case. Because legislatures and courts lack this expertise, they adopt the standards of the experts. Thus in a malpractice suit, juries are instructed to determine whether the doctor met medicine's standard of care. Furthermore, physicians must be called as expert witnesses to guide juries in that work. Even when lawmakers contemplated intensifying their regulation of medicine by creating the duty of informed consent, they could consult a literature to which doctors and medical ethicists contributed crucially. In some jurisdictions, even the scope of the duty is determined by using the medical standard of disclosure (although in other jurisdictions the standard is the degree of disclosure sufficient to permit the ordinary patient to make a sound decision).


Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.