What happens when a physician doesn’t following the majority treatment? Our text gives us two schools of thought in dealing with this. One is the Respectable Minority Doctrine (also known as “ two schools of thought”). Here courts have allowed different treatment methods as long as the theory behind the treatment is condoned by a “considerable number of physicians”. The “respectable minority” rule states that one must be at least among several who purport that the treatment is appropriate. One can also make an honest error of judgment that while it may be compensatory, is not intentional negligence. This is different that using an innovative method, such as an “off label” use of a drug. When do we cross the line from innovative treatment (or judgmental decisions) to experimentation? See Brook p 250. There are also two theories behind defenses for negligence. One is comparative negligence and the other is contributory negligence. Here again, as with local and national rules we addressed last week, these rules are individual by state and once decided on by the state, will be used in all negligence trials. Comparative negligence allows us to compare the negligence of the plaintiff against the negligence of the defendant. In a pure state, the plaintiff is allowed damages in whatever percentage that the defendant is responsible for. Some states used a modified version which sets a minimum percentage that the defendant must be allotted before the plaintiff recovers. For example, the defendant must be more than 50% culpable for the plaintiff to recover. If he/she is found to be 40% liable, the plaintiff will not recover. This percentage is typically set at 50% or more than 50%. Our text case is Ostrowski, p258. Contributory negligence means that if the plaintiff was at all responsible for their own harm, they will recover nothing from the defendant. This is slowly but surely being changed in most states to some form of comparative negligence. It is deemed a harsh rule and in those states still holding onto it, they have adopted the “last clear chance” modification. What is this? Do you think it helps?