New York Medical Malpractice Law Has Not Changed In More Than A Century, But The Standard Of Care Changes Almost DAILY! Amazing? You BET!


When we think of law, we conjure up to distinct images. The first being old powdery wigs and ancient law coming large from England with fancy protocol and decorum which the law does not change from eons ago. The second image we get is the opposite, which is law that is constantly changing and impossible to keep up with. With constant changes and advances in medicine, which do you think the medical malpractice law largely comes from; ancient law or new, constantly changing law?

You may guess that the medical malpractice law is rather new because medicine changes significantly every day, but believe it or not, the medical malpractice standard was really set forth in 1898 which is over a CENTURY ago! That’s right—the law of medical malpractice has been virtually unchanged for the law one hundred plus years!

The case that set the standard is Pike v Honsinger and it is from New York’s highest court, the Court of Appeals. This case established what is known as the prevailing standard of care governing the conduct of medical professionals. It provides that a doctor must exercise “that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where [the doctor] practices.” The duty of care charged to the doctor is measured against the conduct of his or her own peers and how they, as a reasonably prudent doctor, would have acted in similar circumstances.

What is even more fascinating is that the Court of Appeals, in setting this standard over 100 years ago, created the standard of care that a physician is held account to today. This is because the Court of Appeals set the standard of care based on what a defendant-doctor’s peers would be doing. This means the standard of care is FLEXIBLE. It is a brilliant standard which has stood the test of time and shows no signs of stopping.

This is because as medicine advances, the standard of care will morph to what other doctors with that medical advancements would be able to do. Thus, the standard of care in 1898 could be different than the standard of care in 1950, which could be different than the standard of care in 2016, yet the same conduct which occurred at these three points in time could yield three completely different results in a medical malpractice case. This may sound inequitable at first, but remember the standard is taking into account what a physician knows, the medical advancements, and what his or her own peers would do in similar circumstances. Medicine may not be able to do something in 1898 that it could in 1950, but then discover sometime later in 2016 that makes what they did in 1950 technically wrong even though at the time physicians did not know any better. That is an amazing standard!

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at