This project initiates a conversation about patient negligence and trust in the medical setting and offers a test to determine whether patient negligence should be considered in litigation. The project examines the line at which a physician’s impermissible conduct should become reasonably obvious to a patient and therefore trigger a reasonable response. Absent a reasonable response by patients, this project considers whether comparative negligence attaches. Goodwin and Richardson argue due diligence, an aspect of loyalty, is treated as a value fiduciaries owe their clients, rather than a reasonable step that clients owe themselves.
In this collaboration, the authors imagine and unpack a new theory of trust; one which is animated by tort theory, and reads reasonableness and bi-directionality into the trust relationship. In setting the tone of the paper, the authors offer a brief background in tort law’s comparative negligence regime and offer an analysis of medical trust in the United States, locating contemporary reproductive monitoring in a historical context. Goodwin and Richardson consider whether the goals of established trust discourse properly and realistically align with contemporary medical problems. In this thought experiment, they begin to articulate the appropriate ex post inquiries for determining whether a patient acted reasonably in trusting her medical provider. Here, the authors propose a test that considers the patient’s competence, knowledge, prior experience, access to information, and resources to investigate. The authors argue that this test provides a more nuanced approach for ascertaining the circumstances under which it might be reasonable or unreasonable for a patient to rely on a physician’s diagnosis and treatment.
Richardson, L. Song. "Patient Negligence: The Unreasonableness of Relying on Trust." Duke Journal of Law and Contemporary Problems 72, no. 4 (2009): 223-250.