We all read it in law school, and here it is again. The fascinating opinion by Judge Learned Hand in In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932) reminds us that just because just an industry ignores safety practices that are readily available does not mean that due care does not require the practice.
Indeed in most cases reasonable prudence is in fact common prudence, but strictly it is never its measure. A whole calling may have unduly lagged in the adoption of new and available devices. . . . Courts must in the end say what is required. There are precautions so imperative that even their universal disregard will not excuse their omission.
John mentioned this case in a recent comment on a post about the use of IPhones apps in a medical setting. My post asked whether the use of such apps would become the standard of care. I don’t think T.J. Hooper would apply in a standard-of-care analysis under Tennessee law because we have a statute that tells us where the standard of care of health care providers comes from – and that is from the providers themselves.
Of course, one could argue that use of such technology is a duty issue, not a standard of care issue. That is, one could argue that, say, an emergency room physician has a legal duty to use this type of technology regardless of whether emergency room physicians actually use it. The courts can, and have, imposed duties on doctors and others that result in obligations over and above the standard of care. However, that is a different argument than saying that the courts should rule as a matter of law that the standard of care requires the use of such technology by emergency room physicians.