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This chapter develops decision-theoretic principles for reasonable care under uncertainty. It discusses some reasonable ways to choose among undominated actions. When addressing this issue, decision theorists have distinguished three primary situations regarding information that a decision maker may or may not have beyond specification of the state space: decisions with rational expectations, maximization of subjective expected utility, and decisions under ambiguity. When making a choice under ambiguity, a reasonable way to act is to use a decision criterion that achieves adequate performance in all states of nature. There are multiple ways to formalize this idea. The two most commonly studied are the maximin and minimax-regret (MR) criteria.

This concluding chapter provides suggestions that encourage putting the themes of the book into practice. It returns to the question from Chapter 1: “Should clinicians adhere to guidelines or exercise judgment?” The chapter cautions against universal adherence to guidelines. Motivated by some of these considerations, the chapter considers separating two tasks of guideline development that have commonly been performed in conjunction. One task is to characterize medical knowledge. The other is to make recommendations for patient care. An alternative to having guidelines make care recommendations would be to enhance the ability of clinicians to make reasonable patient care decisions under uncertainty.

This chapter argues that strict duties are incompatible with the rule of law because they provide misleading guidance. In a legal system that contains duties to take reasonable care, the only plausible interpretation of strict duties is that they give citizens reasons to take more than reasonable care, that is, to take extreme care. Yet it seems clear that the law cannot seriously want citizens to take such care. Strict duties thus render the law unclear. This chapter examines and rejects three possible responses to this objection: namely, strict duties are legitimate because they support justified liabilities; strict duties are not actually enforced; and strict duties are substantively justified. It concludes by suggesting that the law should reframe strict duties as duties to take reasonable care and, at the same time, should reframe the liabilities previously attached to breaching such duties as ‘free-standing liabilities’, that is, as liabilities to compensate that can arise notwithstanding that no duty was breached.

This chapter elucidates the immanence of corrective justice in negligence liability. It examines each of the negligence concepts (reasonable care, the duty of care, proximate cause, factual cause, and the contrast of misfeasance and nonfeasance) and shows how these constitute a unified ensemble that treats the progression from the defendant's action to the plaintiff's injury as a single normative sequence. Central to this linkage of plaintiff and defendant is the idea of risk, because (as the Palsgraf case stated) ‘risk imports relation’. Each of the concepts traces an actual or potential connection between doing and suffering, and together they translate into juridical terms the movement of effects from doer to sufferer.

This chapter views patient care from a population health perspective. The argument for treatment variation strengthens when one considers patient care as a population health problem rather than from the perspective of a clinician treating an individual patient. This chapter shows that randomly varying the treatment of patients with the same observed attributes can provide valuable error protection and information under uncertainty. That is, it may be useful to diversify treatment choice. The chapter explains that implementation of adaptive diversification may be possible in centralized health-care systems where there exists a planning entity who chooses treatments for a broad patient population.

This chapter considers reasonable decision making with sample data from randomized trials. It continues discussion of reasonable patient care under uncertainty. Because of its centrality to evidence-based medicine, the chapter focuses on the use of sample trial data in treatment choice. Moreover, having already addressed identification, the chapter considers only statistical imprecision, as has been the case in the statistical literature on trials. The Wald (1950) development of statistical decision theory provides a coherent framework for use of sample data to make decisions. A body of recent research applies statistical decision theory to determine treatment choices that achieve adequate performance in all states of nature, in the sense of maximum regret. This chapter describes the basic ideas and findings, which provide an appealing practical alternative to use of hypothesis tests.

This chapter examines conceptual and normative issues concerning contributory negligence and places them within the broader conceptual, doctrinal, and normative framework of tort law. It assesses the extent to which the parties’ moral claims ground their legal rights and remedies, without careful regard to practical and institutional constraints. However, some of the analysis might suggest reasons for altering or refining current legal doctrine. For simplicity, the chapter uses the term ‘contributory negligence’ as a shorthand for either traditional contributory negligence, which was a complete bar to recovery, or modern comparative negligence, where the plaintiff’s negligence reduces but need not bar recovery. The concept of injurer fault does entail that the injurer should have acted otherwise, since injurer fault means conduct that is deficient relative to a standard of reasonable care.

This chapter presents the French model of contractual liability, which includes three categories. The first requires the use of reasonable care. The second imposes strict liability to achieve a result, subject to possible exemption if the failure was due to a cause for which the party not responsible and could not surmount. The third category includes cases of absolute liability. The common law contractual liability is analysed against this model, and it is pointed out that there are analogues to the three categories of liabilities in French law. The chapter discusses the common law technique of implied terms, which was employed to base liability on fault as well as the doctrine of frustration.

This chapter shows how actions on the case were used to obtain compensation for various forms of harm caused by negligence even when there was no undertaking to use care. Early examples were those brought on ‘the custom of the realm’ against innkeepers and those who failed to control domestic fires. The arguments over what defences could be pleaded in such actions show that liability was generally strict. Although a later custom of the realm was invented for use against carriers, it was not necessary to formulate more customs, since a custom prevailing throughout the realm was common law. Miscellaneous examples are found of actions for negligence per se, for instance in respect of accidents arising from hazards in public places, and these were eventually seen as representing a general principle of common law that everyone should take reasonable care not to injure his neighbour.