Private Law Theory

Introduction:
… Coming to a hospital near you, the medically enhanced doctor, a doctor who thinks faster, is better with short and long term memory, is calmer during surgery, can work double shifts with little cognitive fatigue, and one day may have the memories of years of experience without actually having had them. In the words of the 1970’s television series The Six Million Dollar Man, ‘We can rebuild him. We have the technology. We can make him better than he was. Better, stronger, faster’.

So, if we can ‘make’ this doctor, then why shouldn’t we? And if we do, what happens to the standard of care in medical malpractice cases? What will be the effect on all of those other doctors who choose to remain ‘normally unenhanced’, or to the practice in general? Will these ‘super docs’ increase the standard of care for all doctors, or will we hold those enhanced doctors to a different standard than other doctors? Perhaps the invisible hand of the marketplace will make doctors who refuse to enhance themselves obsolete. And, if these enhancements can be shown to improve patient care, then should we mandate them for all physicians who would benefit?

This article will introduce some of these issues and offer some possible guidelines which may eventually guide cases of medical malpractice and medical care in the face of neurointerventions. First, I will briefly address the standard of care in medical malpractice cases in general. Second, I will discuss some of the existing and potential physical and neurological enhancements available for physicians. Finally, I will explore how these neurointerventions could alter the standards for medical malpractice for both the enhanced doctors and the entire medical profession … (more)

Harvey L Fiser, ‘The Treatment for Malpractice – Physician, Enhance Thyself: The Impact of Neuroenhancements for Medical Malpractice’, 36 Pace Law Review 438 (2016).

First posted 2016-04-13 12:42:37