In litigation of claims of professional malpractice, the “two schools of thought doctrine” is a complete defense. Jones v. Chidester, 531 Pa. 31, 40, 610 A.2d 964 (1992).
As explained by the Pennsylvania Supreme Court, physicians may defend against claims that they deviated from the standard of care, or of professional malpractice, by adverting to support for their treatment by a minority of professionals in their field:
“Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.”
Id. at 40. See also Fallon v. Loree, 525 N.Y.S.2d 93, 93 (N.Y. App. Div. 1988) (“one of several acceptable techniques”); Dailey, “The Two Schools of Thought and Informed Consent Doctrine in Pennsylvania,” 98 Dickenson L. Rev. 713 (1994); Douglas Brown, “Panacea or Pandora’ Box: The Two Schools of Medical Thought Doctrine after Jones v. Chidester,” 44 J. Urban & Contemp. Law 223 (1993).
Perhaps the two schools doctrine is an interesting anomaly that harkens back to a legal epistemology founded in authority rather than evidence. In the law of expert witnesses, the criterion for admissibility of opinion has shifted from “general acceptance” to epistemic warrant, but malpractice law still allows custom and practice to dictate the standard of care. The two schools doctrine ameliorates the practice of basing standard of care on authoritative, non-evidence based practices and opinions. If standards of care were truly evidence based, then there might still be situations in which the available evidence was inconclusive between two approaches to patient care. In situations of inconclusive evidence between two approaches, the two schools doctrine would provide a defense.
Products Liability
In products liability cases, failure-to-warn theories are often predicated upon claims that defendants should have known of a risk of harm posed by their products. Plaintiffs will cite past pronouncements made by authors as evidence that the harm was “known” to others, and thus the defendants should have known of the harm, and thus should have warned about the harm. This species of claiming often takes place, however, without any analysis whether the past pronouncements were made with good and adequate scientific bases.
If products liability law persists in treating past, putative knowledge uncritically, then it should, at least, allow defendants to defend on the ground that there were contrary pronouncements made. Juries should be told that the existence of contrary pronouncements from a respectable minority of writers is a complete defense. The two schools of thought doctrine should thus be given wider play in tort law than just professional malpractice. Products liability should honor the basic underlying principle of malpractice law that the opinions of even a respected minority of experts fully answers the claim of negligence. The existence of the contrary opinions should bar punitive damage claims altogether.
Consider what happens in the typical failure to warn case. The plaintiff goes trash picking through the dustbin of medical history to find some prescient writer who argued that the product in question causes disease. Defendant points to other authors who disputed the relationship. The court instructs the jury that they may find defendant negligent for failing to warn if they believe the plaintiffs’ evidence. The jury makes its decision, thoroughly infected with hindsight bias.
This scenario is unsatisfactory and unduly restrictive. Applying the two schools of thought doctrine, the court should instruct the jury to find for the plaintiff only if there was not a considerable number of recognized and respected professionals and experts, who had opined that the product caused the specific injury in question. The existence of such a minority should defeat claims for punitive damages as a matter of law.
United States v. Harkonen
On May 7, 2013, the Ninth Circuit of the United States Court of Appeals denied, Dr. Harkonen’s petition for rehearing in United States v. Harkonen. No data or analyses were false or fabricated in the Harkonen case. The government’s prosecution was predicated on a statistical orthodoxy that is opposed by a large number of recognized and respected statisticians. This fact would have been a complete defense to a claim of professional negligence. The two schools doctrine should completely bar a prosecution for fraud.
Remarkably, expert witnesses commonly testify to causal associations on lesser evidence than Dr. Harkonen relied upon in a press release for his judgment of causal efficacy, but the trial court believed the jury could infer scienter and falsity from conversations between an “orthodox” statistician and Dr. Harkonen about the propriety of drawing a casual inference from a given dataset.
Perhaps civil litigants should start counterclaiming for fraud when they receive expert witness reports.
