Where is tort reform headed? Caps, safe harbors—perhaps nowhere? The jury is out. Caps (financial limits) on noneconomic damages, review panels, and many other seemingly viable strategies have been implemented with mixed but overall disappointing results. Safe harbors, providing legislative protection for following decided-upon standards, are a far-reaching goal that has gained some traction in the past year. However, if you’re waiting for a safe harbor, you’ll run aground with respect to liability reform while waiting for its protection. Perhaps the most viable solution at our fingertips is adjusting the standard for negligence (ie, ordinary negligence to gross negligence) in medical liability tort claims. This is often confused with the “burden of proof” required to prove your position. The burden of proof for “ordinary negligence,” the current standard in medical malpractice cases, is defined as a “preponderance of evidence.” The other end of the spectrum is “beyond a reasonable doubt,” the standard for criminal cases. Somewhere in between is the “clear and convincing” standard in which plaintiffs would need to prove that it is substantially more likely than not that their allegation is true. Although this is beyond the scope of this article, several states have or are pursuing adjustments to the standards for the burden of proof.

A Possible Solution?

Perhaps the most intriguing avenue, which is also related to burden of proof, is the duty standard. If you have a duty to act, what is the standard of care required to fulfill that duty? For ordinary negligence, the standard is one of reasonableness: what a reasonable provider with similar training would do in a similar situation. Doesn’t it sound reasonable that much of what we do while practicing the art of medicine could be deemed reasonable? Yes, if someone else wasn’t trying extra hard to prove exactly the opposite. Herein lies the problem—and the ray of hope with changing the duty standard, which appears to be one of the most viable solutions for tort reform currently available. If the duty standard were changed to a standard much further from normal practice, we could easily identify when negligence really has occurred. With the current reasonableness standard, variations in practice and patient outcomes are all too often deemed negligent. Despite the fact that we all try very hard to provide the highest quality of care possible, reasonable choices may result in unanticipated and even disastrous outcomes. Should a well-intentioned provider be subject to allegations of negligence under such circumstances? In our opinion, absolutely not. Using a gross negligence standard would require that the provider’s actions are less reasonable than what would be required under an ordinary negligence standard, and it would identify cases in which little or no care at all is being taken to provide acceptable quality of care. Such a standard should result in identifying those cases in which the duty to the patient was clearly breached, avoiding labeling cases of medical nuance as negligent. Gross negligence is defined as reckless behavior or conscious disregard for the risk of one’s actions, actions so unreasonable that a layperson without medical training could easily recognize the negligence with little or no need for expert witness testimony. In addition, when the allegation is more serious (eg, gross negligence), the burden of proof is often simultaneously increased. In most jurisdictions, the burden of proof for gross negligence requires clear and convincing evidence as opposed to just the preponderance of evidence, which is most common with the ordinary negligence standard.