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American Medical Malpractice Litigation in Historical Perspective

American Medical Malpractice Litigation in Historical Perspective Abstract Medical malpractice and the problems associated with it remain an important issue in the US medical community. Yet relatively little information regarding the long-term history of malpractice litigation can be found in the literature. This article addresses 2 questions: (1) when and why did medical malpractice litigation originate in the United States and (2) what historical factors best explain its subsequent perpetuation and growth? Medical malpractice litigation appeared in the United States around 1840 for reasons specific to that period. Those reasons are discussed in the context of marketplace professionalism, an environment that provided few quality controls over medical practitioners. Medical malpractice litigation has since been sustained for a century and a half by an interacting combination of 6 principal factors. Three of these factors are medical: the innovative pressures on American medicine, the spread of uniform standards, and the advent of medical malpractice liability insurance. Three are legal factors: contingent fees, citizen juries, and the nature of tort pleading in the United States. Knowledge of these historical factors may prove useful to those seeking to reform the current medical malpractice litigation system. Medical malpractice has been pushed back from the medical headlines in recent years, but the problems associated with malpractice have not gone away. Studies undertaken in the 1980s and 1990s demonstrated convincingly that the current US system of medical malpractice litigation is expensive as a social policy and irrational as a compensatory mechanism.1-12 Readers interested in just how expensive and just how irrational can find plenty of information in those studies and in the subsequent debates they spawned.13-21 But little can be found in those studies about the question that most intrigues a historian: how did the United States come to be in its current situation with regard to medical malpractice litigation in the first place? When the problems associated with medical malpractice resurface again, some understanding of the dynamics that produced our present circumstances might prove useful. This overview summarizes and synthesizes the history of medical malpractice litigation in the United States by posing 2 questions. First, since medical malpractice litigation was almost unknown for the first half-century of the republic, when and why did it appear in the United States? That line of inquiry is based on the assumption that the origins of a phenomenon often shape, and almost always offer insight about, its subsequent development. Second, what factors best account for the persistence and more or less continual growth of medical malpractice litigation to the present time? After all, the phenomenon could have gone away as quickly as it appeared or succumbed to more efficient mechanisms; instead, the system has become ever larger and more deeply entrenched. The origins The general concept of professional malpractice was well embedded in English legal theory by the beginning of the 18th century. In 1768, Sir William Blackstone linked that general concept explicitly to physicians. His famous Commentaries on the Laws of England included under mala praxis (from which we derive the modern word malpractice), "Injuries . . . by the neglect or unskilful [sic] management of [a person's] physician, surgeon, or apothecary . . . because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction."22 Blackstone's Commentaries was widely read in the American colonies and remained influential through the early national period of US history. But as a practical matter, actions for medical malpractice were rarely taken in the United States through the first third of the 19th century. Even at a theoretical level, the medicolegal concept of malpractice was so arcane and so unimportant in the United States that American writers on medical jurisprudence, those most likely to be interested in the subject as an aspect of legal medicine, did not bother to mention it through the first 4 decades of the 19th century. The vast majority of US lawyers would not have known how to draft an action for medical malpractice.23 All of that changed, quite abruptly in historical terms, around 1840. By 1850, medical malpractice litigation as Americans recognize it today was an established phenomenon. Several factors help account for its sudden appearance at that particular point in US history. The onset of medical malpractice litigation corresponded with a sharp decline of religious fatalism and a dramatic rise of religious perfectionism, both of which were associated with the revivals of the 1820s and 1830s. As a result, even fervently religious Americans were less willing than earlier generations to accept physical afflictions as acts of divine providence. This same period also produced both the nation's first widespread efforts to improve physical fitness and its first great food reforms. Americans were coming to the realization, or at least the hope, that bodily well-being could be controlled and, perhaps, even improved upon. Such attitudes were strengthened by a revolution of rising expectations in the medical arena, fed by aggressive and flamboyant medical advertising. With the popular newspapers of the late 1830s and early 1840s full of hyperbolic claims and alleged success stories, patients who failed to improve—or who even regressed—were no longer willing to dismiss unfavorable medical outcomes as either inevitable or normal. And if someone was at fault, it must have been the physician, who could have and, therefore, should have done better.23-29 The most important precondition for the rise of medical malpractice litigation, however, was the advent of what has been labeled marketplace professionalism, a phenomenon unique to the United States at that point in Western history, and one of the most dramatic ways in which professional development in the United States diverged from older European patterns.23 Throughout Europe and the United Kingdom, the learned professions had evolved for centuries under the explicit sanction of whoever ruled their societies. In the United States, however, that traditional sanction was not available, a fact of American professional life that became abundantly clear during the 1830s. Elitism and special statuses of all sorts came under intense fire in the extreme antimonopoly sentiment of that decade. Among the many sectors of American life that were profoundly affected by those sentiments were the professions, particularly medicine and law. The few quasi-regulatory statutes previously enacted at the state level (where professional regulation would have taken place) were repealed, and the separate states made a virtue of opening the professions to any and all practitioners who could persuade fellow citizens to employ their services. No US government was willing to sanction one group of potential professionals and exclude others. Consequently, by 1840, the entire United States had become a place where each profession had to shift for itself, and so did each individual professional. Physicians found themselves adrift as competitive agents, hustling for business in a market that included a wide spectrum of alternative and often antagonistic healers, trained and untrained, ranging typically from the woman down the lane who grew a few herbs in her garden to surgeons who had apprenticed in European hospitals. From the public's point of view, this opening of the professions left few quality controls in place, good or bad. Halting efforts to guarantee standards among various subsets of physicians themselves proved quickly and utterly ineffectual in the face of intense personal rivalries and competing theories of practice. The only alternative for patients was to try to hold individual practitioners, one at a time, to whatever standards they or their lawyers, one at a time, wanted to impose. And lawyers, too, were fiercely hustling for business of their own in the United States' radically open professional marketplace. Just as anyone could have a go at the healing business, so could anyone practice law. Under such wide-open circumstances, suits for malpractice, a previously arcane and quiescent branch of the law, suddenly emerged as a tempting new growth area for aggressive lawyers. American courts encouraged the trend by relaxing the once-rigid standards for initiating civil tort proceedings of all sorts, including medical malpractice actions.30,31 The result was an explosion of medical malpractice suits. From 1840 to 1860, the number of malpractice cases carried to state appellate courts in the United States as a whole roared ahead 950%. The population rose about 85% during that period, which suggests that the rate of malpractice suits jumped abruptly by a factor of roughly 10-fold during the middle 2 decades of the 19th century.27 Medical journals, after more than 50 years of barely noticing malpractice on the medical horizon, suddenly became all but obsessed with the problem. Editor after editor wondered what had happened and what could or should be done.23,28 In theory, the nation's strongest and best-trained physicians might have welcomed the sudden and dramatic increase in the number of malpractice suits as a useful method of driving charlatans and amateur hacks from the field. In 1827, for example, Nathan Smith, MD, at Yale University had complained to his medical students that the state of Connecticut was far too lax in bringing malpractice indictments. "Even the most egregious Quacks escape punishment as things now stand," he grumbled, and he hoped for more action on this front.32 In 1834, the equally prominent R. E. Griffith, MD, at the University of Pennsylvania Medical School made the same kind of complaint about the unwillingness of US governmental authorities to safeguard the public against what he regarded as rampant irresponsibility in medicine.33 Both of those giants of early medical education had envisioned lawyers as potential allies in an effort to improve medical care in the United States. But over and over during the 1840s and 1850s, the nation's best-educated and most professionally minded physicians observed with a sort of defensive incredulity and disbelieving horror that many, if not most, of the burgeoning numbers of malpractice suits were being lodged not against charlatans and amateur hacks, but against others like themselves, the best-educated and most successful physicians. Those suits implicitly revealed one of the most deceptively obvious yet crucial aspects of medical malpractice and pointed to the final reason why the great wave of malpractice litigation originated when it did: there can be no malpractice without established practice; physicians cannot be convicted of deviating from accepted standards if no accepted standards exist. Amateurs and alternative healers had always delivered what patients came to them for, be it hot baths or herbal teas, and could not be sued for undesirable results. They claimed no fixed recipes and made a virtue of treating each case individually. Educated physicians, on the other hand, could have texts and advanced manuals (in steady production by 1840) used against them in court as codified norms from which they could be accused of diverging. Writing from Erie, Pa, in 1849, William Wood, MD, a US Navy physician, understood the frustrations of this principle all too well. "It is better to be without a diploma" in the current climate, he concluded ruefully, because then a "practitioner can say, ‘I make no pretensions, I offer no certificate of ability, and only gave my neighbour in his sufferings such aid as I could.'"34 The nation's best physicians became ironic victims of their own medical advancement in another way as well. The vast majority of lawsuits that constituted the first great wave of malpractice litigation at mid-century involved orthopedic cases in which a limb had healed to a shortened, deformed, or frozen position following compound fracture (simple fractures had been successfully treated since antiquity). Patients found themselves with an unambiguous, easily demonstrated, and visually obvious problem and sued the physicians who set their bone fragments and dressed their wounds. What made this situation ironic was that 20 years earlier, most compound fractures would have been amputated. The patient would have had no limb at all, but no malpractice case either, since the physician would have been following safe and standard procedures. Improved techniques and more careful training produced an advance, but because the consequences of the advance were often imperfect, those who tried to save limbs in difficult cases—something amateurs or inexperienced healers would never dare try—often found themselves being sued. Some of the best physicians in the country stopped taking such cases.35 Finally, patients had little or no incentive to sue marginal healers who had few assets but substantial incentive to sue the most prosperous physicians, from whom they might actually collect money. That incentive, superimposed on the anti-elite, antimonopoly, and antiprofessional ethos of the 1830s and 1840s, gave the United States' first medical malpractice crisis a distinctly class-oriented aspect. Physicians near the top of their profession certainly saw class as a factor in the crisis and regarded many malpractice actions as thinly veiled efforts either to escape payment for a disappointing outcome or to turn misfortune into cash at the expense of a wealthy professional. Medical societies reconsidered their traditional willingness to treat the poor; impecunious patients were made to post bonds against subsequent legal actions before receiving medical treatment; and medical spokesmen railed against what they regarded as the unfair revival and perversion of a long-dormant legal doctrine for the purpose of shaking down the nation's better physicians. Physicians regularly found it easier to forgive bills or settle claims out of court than to fight accusations and risk their reputations, their practices, and possible bankruptcy.27,35 Mid-century medical journals were full of letters and articles from obviously stunned, sometimes bitter, and frequently irate physicians who regarded the spread of malpractice litigation as a quasi-revolutionary assault.36 The burgeoning malpractice crisis of mid-century quickly cut a deep chasm between physicians and lawyers in the United States, a division that still exists.37-39 Many prominent physicians believed that the general public, and especially the poor, would not be attacking the physicians who helped them, often for little or no fee, unless their antagonisms were incited by self-seeking and professionally irresponsible attorneys. By mid-century, the Boston Medical and Surgical Journal was referring to geographical areas where actions for malpractice proliferated as "law-infected districts."40 The embittered physicians were partly right: lawyers did encourage one another to keep expanding what appeared to be a new growth market for their services. In 1848, for example, the American Law Journal noted with disgust that the death of a patient during neck surgery had been ruled accidental. The journal suggested that the same standards of liability should apply in medical cases that applied in any other dangerous trade. The editor likened physicians to boiler mechanics: the former should be as liable as the latter was if clumsiness or lack of knowledge led to an explosion. This law journal likewise considered deaths and complications that followed the administration of anesthetics (just beginning to come into widespread use among US physicians) a potentially fertile new field for lawyers to cultivate more aggressively in the future.41 Lawyers in the 1840s also found a way to expand their pool of potential litigants by bringing suits for alleged suffering that occurred years after the operation at issue had been performed.42 Physicians considered those suits shameless fishing expeditions, and they grew absolutely furious in the early 1850s when lawyers also began to sue physicians not only for what they did but also for what they allegedly failed to do in cases they had not accepted.43 The expression of antilawyer sentiments, which had not been a strong theme in physicians' discourse before 1840, became both common and blatant after mid-century whenever physicians discussed malpractice. To cite a single prominent example, Eugene Sanger, MD, a physician whose 1878 survey of medical malpractice in the state of Maine was one of the most systematic of the early sources of information about this growing phenomenon, believed that malpractice attorneys "follow us as the shark does the emigrant ship."44 Many of his fellow physicians were less metaphorical and less subtle. It would be easy to fill several hundred pages with vituperative, antilegal rhetoric from medical journals after mid-century, but there is little reason to do so now, in the early 21st century, since Americans have become accustomed to strained relations and strong opinions whenever physicians discuss lawyers in the context of malpractice. Suffice it to say that the origins of those now-axiomatic professional tensions lay in the middle decades of the 19th century. Although widespread malpractice litigation burst on the US medicolegal scene around 1840 for reasons specific to that period, its subsequent continuation and growth must be explained in different ways, particularly since a number of other medicolegal phenomena of that period have subsequently disappeared altogether. Hence, the second line of inquiry suggested at the outset: why did the suddenly appearing malpractice crisis of the 1840s not only fail to abate, but continue to expand over the next century and a half to become such a large and securely fixed element in the contemporary US medicolegal firmament? One set of explanations emphasizes developments in US medicine; another set of explanations stresses developments in US law. The remainder of this article briefly addresses the arguments from both sides, arguments that do not come into dialogue with each other nearly as often as they should. Perpetuation and expansion The Medical Arguments Among the medical explanations, 3 propositions stand out. Preeminent among them is the "medical innovations" thesis, or the "ironic victims of their own advancement" thesis. According to this explanation, the competitive nature of the US medical marketplace has driven an ideology of continuous improvement, a relentless push to find better and better therapies, to tout newer and newer procedures. On one hand, this might be viewed as the greatest benefit of the modern system. For thousands of years, both in the East and in the West, healers essentially accepted and applied the wisdom of the ancients; they did not regard themselves as innovators and were overtly skeptical of progress. American medicine changed that radically, and American physicians had to keep striving for constant improvement, or at least the appearance of constant improvement. But, on the other hand, each new technique they tried and each new therapy they experimented with had the potential, especially in the short run, of introducing new patient dangers and new grounds for litigation, as with compound fracture in the 1840s. The spread of x-ray technology provides another excellent example of this dynamic in the early decades of the 20th century. On one hand, radiographs undoubtedly advanced medical practice in dramatic ways, much to the benefit of most patients, and physicians eagerly adopted the new technology. On the other hand, within 20 years of their introduction, radiographs had become one of the nation's most prolific sources of malpractice actions (too much radiation, failure to read the films properly, and so forth). Litigation concerning radiographs produced many of the highest damage awards (>$5000) in the decade prior to World War I and generated a whole new body of evidentiary disputes (eg, ownership of films, interpretation of faint images). Radiographic tests also opened to exposure other sorts of medical mistakes that were previously difficult to demonstrate in court.24,45-49 Although the number of malpractice cases associated with any given innovation tended to fall after an initial (and usually delayed) spike, the number did not fall back to 0. Instead, some statistically predictable percentage of malpractice actions came to be associated with each new procedure, thereby adding to the cumulative total of already existing long-term percentages associated with other ongoing procedures. The result was an after-the-fact layering effect that cumulatively built the total number of malpractice cases as a whole. At the heart of this argument lies a paradox: if medical advancement necessarily involves risk, then the price the United States has paid for a system that has put unprecedented pressures on medical advancement has been unprecedented rates of medical malpractice. A second medical explanation for the persistence and growth of malpractice litigation in the United States builds on the idea mentioned earlier about the necessity for standards against which to measure mistakes. The American Medical Association (AMA) was founded in 1847, by no coincidence during the same decade that the nation's first malpractice crisis burst on the American medical scene. The AMA spent the rest of the century trying to bring order to the medical marketplace, principally by trying to regularize education, establish uniform national standards, and gain the sanction of the state in the form of licensing laws. By the end of the 19th century, the so-called regular, science- and education-oriented AMA-type physicians had gained control over perhaps 80% of US medical practice, and by the early decades of the 20th century, they finally succeeded in gaining reasonably effective licensing laws at the state level. This had the effect of driving dangerously unqualified healers from the field, but at the same time it rendered physicians more vulnerable than ever to malpractice suits, since the license each physician was now required to hold pledged him or her to a set of approved standards, and, in theory, almost any action could be presented as a deviation from those standards. As a result, by the 1930s, almost every physician in the country was in the position that only the most learned physicians had found themselves occupying in the 1840s.24,45,50-52 A third paradox on the medical side of these arguments follows from the advent of liability insurance for physicians. That insurance was regarded as a triumph and a salvation by the physicians who pioneered it at the end of the 19th century.27,35,51 As a professional instrument, it had the beneficial and desired effect of dispersing risk throughout the medical community. Physicians no longer had to face the constant prospect of personal bankruptcy, as they had done since the 1840s, and they embraced liability insurance as an acceptable accommodation to the system of malpractice litigation that had arisen in the United States. But they did not pursue any number of other possible ways to deal with malpractice (such as more vigorous state policing under the new licensing laws), and the rapid spread of liability insurance at the end of the 19th century quickly produced a situation in which nearly every physician was now worth suing. In essence, by successfully responding to the most acute practical problem that malpractice litigation posed for individual physicians, medical liability insurance all but guaranteed perpetuation of the existing system into the 20th century. The Legal Arguments Three principal arguments also stand out among legal explanations for the persistence and growth of malpractice litigation. The first stresses the so-called contingent fee arrangement (and its many variations). The contingent fee was neither invented for nor limited to medical malpractice cases, but it proved to be a major factor in malpractice litigation from the outset. Under that arrangement, plaintiffs risked nothing in bringing charges, then split with their attorneys some portion of any judgment they were able to win, in or out of court. Physicians, who were fiercely committed to fee-for-service arrangements in their own profession, consistently denounced contingent fee arrangements in the legal profession and tried repeatedly to have contingent fees declared illegal or unethical. As early as the 1880s, the AMA regarded "a large proportion" of malpractice actions as having "no other foundation than a desire to extort money from the defendant sufficient to secure a good fee for the prosecuting counsel."53 But physicians gained little headway then or since in the face of egalitarian arguments that every citizen had the right to bargain for legal representation on the best terms available, whether cash was in hand or in prospect. In retrospect, contingent fees have allowed lawyers, who have been under fierce competitive pressures of their own, to sustain medical malpractice litigation by subsidizing the system themselves through the assumption of risk. Because they were risking their own professional capital, however, lawyers have not historically concentrated on all forms of medical negligence, or even on the most intrinsically dangerous specialties. They have gravitated instead toward cases in which negligence appeared easiest to demonstrate in the courtroom, cases that most often produced payments (whether or not the bad outcomes were really the result of medical mistakes), and cases most likely to yield the largest settlements. Those dynamics have tended historically to elevate the frequency of malpractice actions in various specialties at various times (eg, obstetrics in the 1980s), while leaving the vast majority of all patient victims as a whole outside the system and without compensation of any sort. The observation that large settlements have been easier to obtain in some medical areas than in others leads to a second principal legal argument for the perpetuation and growth of malpractice litigation in the United States: the sacrosanct place of ordinary juries in the US legal system. Medical malpractice cases, which historically have been among the most esoteric civil proceedings in the United States, have been tried before juries largely unable to assess substantial portions of the evidence put before them. Recent research has suggested that juries in the late 20th century have been doing a better job with malpractice cases than physicians give them credit for, and a number of scholars defend the jury system in medical malpractice cases on the basis that no compellingly better mechanism can be demonstrated.15 Still, from a lawyer's point of view, the use of ordinary jurors has historically given every case a chance because their presence has challenged the lawyer's ability to influence the uninitiated as much as, and sometimes more than, it challenged the plaintiff to demonstrate genuinely unreasonable harm in what were often inherently gray areas.54 Moreover, ordinary juries have sometimes awarded rather disparate sums in apparently similar cases. As with contingent fees, physicians recognized this factor from the outset, and as early as the 1850s, led publicly by Walter Channing, MD, at the Harvard Medical School, they campaigned vigorously for the use of specially empaneled expert juries in the emerging arena of medical malpractice cases. But the US legal system has rarely permitted neutral fact-finding or third-party adjudication; almost everything has been adversarial, and American law in the 1830s and 1840s was already moving powerfully in that adversarial direction. The empaneling of experts to decide medical malpractice cases was opposed throughout the 19th century by the courts (which saw it as an infringement on their powers), by dissonant medical sects (who objected to privileging some opinions and approaches over others), and by ordinary citizens (who regarded such proceedings as too close to "star chambers" or old-world inquisitorial models they regarded as anathema).23 Adversarial justice as determined by ordinary citizens has remained essentially unchallenged in malpractice cases to the present. A third legal argument for the perpetuation and entrenchment of the nation's current system of medical malpractice litigation involves the unique nature of tort pleading in the United States, though tort pleading has been altered somewhat during the last century and a half. American legal theory defines torts broadly but vaguely as private civil wrongs that violate understood duties or social responsibilities. Torts differ from contracts because the parties to a contract have theoretically agreed in advance on acceptable and unacceptable outcomes. The first wave of malpractice suits in the United States had been brought to court as tort actions. Throughout the second half of the 19th century, courts wavered between continuing to treat malpractice as a tort action and recasting it as a contract action (as an implied contract between physician and patient). In a series of key cases during that period, judges leaned first one way and then the other.27 Had malpractice been transformed into a contract action, as it might well have been in the context of marketplace professionalism and if physicians themselves had pushed for that interpretation, then physicians and patients might have begun to contract for limited liability and thereby might have altered at least some aspects of the developing pattern of malpractice suits.38,45,55 American physicians, however, did not want to be classified with boilermakers and other nonprofessional occupations. Their first priority was to win and retain the legal status of a profession. Consequently, they maintained that the patient-physician relationship could never be a contract between equals, but was instead a situation in which the possessor of knowledge and skill beyond ordinary comprehension offered service to patients who often could not know their own best interests (and, hence, could not contract for them). Physicians also wanted to be judged, as other professionals had historically been judged, principally on their efforts rather than their results. That ideological position served the physicians'professionalizing agenda well and helped them eventually obtain the licensing laws they sought.51,53 But it cost them dearly, both literally and metaphorically, on the malpractice front because malpractice remained a tort: vague, flexible, easily manipulated, and easy to initiate. There have been 3 major periods of tort adjustment since the one that helped sustain the initial burst of malpractice cases in the 1840s. One of those periods corresponded to the so-called Progressive Era during the first 2 decades of the 20th century. During that period, a number of states began to apply the res ipsa loquitur rule (ie, this situation speaks for itself; the mistake appears to be self-evident) to certain types of malpractice cases, thereby placing the legal burden on physician defendants to demonstrate that they had not been negligent rather than on patient plaintiffs to demonstrate that negligence was involved in their adverse outcomes.56-58 Much more importantly, the old "local standards" defense also began to weaken noticeably during this period, as licensing laws spread across the nation and physicians were expected to keep up with their fields.45,47,56,59 In the wake of the Progressive period, the number of actions for medical malpractice increased sharply during the 1920s and 1930s.24 A second period of adjustment occurred during the consumer-conscious 1960s, which, among other things, legitimated a quantum leap in the amount of money awarded in tort actions. The reality of new thresholds became apparent to physicians as the average award in medical malpractice actions more than tripled between 1975 and 1985, helping trigger the malpractice crises of that era.2 In response, a third period of attempted tort adjustment is now under way, in which physicians have joined insurers and businesses in an effort to curtail tort actions and to cap or reduce tort awards. Conclusion Of the 6 principal factors that perpetuated and expanded the current system of medical malpractice litigation after its appearance around 1840, 5 remain powerfully in place. Indeed, each of these 5 remains socially or professionally compelling when considered separately. American medicine, for example, almost certainly will and almost certainly should continue to place a high premium on innovation. That commitment to progress is probably this nation's greatest contribution to the long-term development of medicine in general, even though medical advances have helped drive the nation's long wave of malpractice litigation. It is also in the public interest that the best medical procedures become ever better prescribed and universalized, even though closely prescribed procedures render physicians vulnerable to charges of deviating from them. Few Americans have indicated any desire to prevent lawyers from taking risks, even if the lawyers decide for themselves which risks to take; nor have they shown any willingness to deny the poor their day in court, which suggests that contingent fee arrangements are not likely to disappear anytime soon either. And, notwithstanding some movement in recent decades toward special judicial panels (particularly in complicated business and accounting cases), the nation's commitment to the ultimate mechanism of the ordinary jury is also likely to remain unshakably in place. Finally, given rising levels of compensatory consciousness on many fronts, not just in medical situations, tort actions show no sign of diminishing in volume or importance. Indeed, the room for growth in the number of medical malpractice suits is theoretically large. The one long-term historical factor in which changes in the present system might most logically occur involves the insurance mechanisms worked out at the end of the 19th century. In making the problem manageable, those insurance mechanisms implicitly accepted and institutionalized the larger patterns of malpractice litigation that had emerged by that time, whether or not those patterns were optimal for the future. Over the ensuing century, as the phenomenon of malpractice litigation continued to expand, the essential irrationalities and skewed costs of the system became increasingly obvious and expensive. The insurance mechanisms put into place earlier had to strain ever harder to mask those irrationalities and damp out their rising social costs, but the mechanisms continued for the most part to keep the system at least manageable. During the crises of the 1970s and 1980s, those older mechanisms appeared to be approaching their breaking points, even though the rate of medical "mistakes" had not significantly changed. Basic manageability itself appeared to be seriously endangered.2,3,10,60-63 Investigations were launched and governmental authorities tried to tweak the system gingerly in various ways, but their experiments and interventions had limited long-term impact.7 Massive infusions of investment capital have since cushioned the system through the roaring economy of the 1990s, but premiums are certain to rise even if such favorable conditions continue. Under more difficult conditions, premiums will soar. Intervention of some type may then be required in the future simply to keep some specialties available in the medical marketplace. But whenever the next crisis comes and regardless of what form it takes, those seeking reform should consider not only the immediate panic but the entire complex of interacting historical forces that produced, perpetuated, and expanded the present system of medical malpractice litigation in the United States. References 1. Danzon PM. 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J Med Philos.1997;22:373-379.Google Scholar 20. Wing KR, Jacobs MS, Kuszler PC. The Law and American Health Care. New York, NY: Aspen Law & Business; 1998. 21. Galanter M. An oil strike in hell: contemporary legends about the civil justice system. Ariz Law Rev.1998;40:717-752.Google Scholar 22. Blackstone W. Commentaries on the Laws of England. Vol 3. Oxford, England: Clarendon Press; 1768:122. 23. Mohr JC. Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America. New York, NY: Oxford University Press; 1993. 24. Smith HW. Legal responsibility for medical malpractice. JAMA.1941;116:942-947, 2149-2159, 2490-2494, 2670-2679, 2755-2768. 1941;117:23-33.Google Scholar 25. Sandor AA. The history of professional liability suits in the United States. JAMA.1957;163:459-466.Google Scholar 26. Burns CR. Malpractice suits in American medicine before the Civil War. Bull Hist Med.1969;43:41-56.Google Scholar 27. DeVille KA. Medical Malpractice in Nineteenth-Century America: Origins and Legacy. New York, NY: New York University Press; 1990. 28. Mohr JC. The origins of medical malpractice in the United States. Trans Stud Coll Physicians Phila.1992;14:1-21.Google Scholar 29. DeVille KA. Medical malpractice in twentieth century United States: the interaction of technology, law and culture. Int J Technol Assess Health Care.1998;14:197-211.Google Scholar 30. Horwitz M. The Transformation of American Law, 1780-1860. Cambridge, Mass: Harvard University Press; 1977. 31. White GE. The intellectual origins of torts in America. Yale Law J.1977;86:671-693.Google Scholar 32. Smith N. Medical jurisprudence. Lecture notes taken by Skelton AJ. New Haven, Conn: Yale University Medical School; 1827. Located at: National Library of Medicine, Bethesda, Md. 33. Griffith RE. Not Available Am J Med Sci.Review of: Trebuchet A. Jurisprudence de la Medecine, de la Chirurgie, et de la Pharmacie, en France. 1834-1835;15:168-170.Google Scholar 34. Wood W. Thoughts on suits for malpractice, suggested by certain judicial proceedings in Erie County, Pennsylvania. Am J Med Sci.1849;18:400.Google Scholar 35. Konold DE. A History of American Medical Ethics, 1847-1912. Madison: University of Wisconsin Press; 1962. 36. Channing W. A medico-legal treatise on malpractice and medical evidence: a review. Boston Med Surg J.1860;62:233-241, 259-265, 300-307.Google Scholar 37. Elwell JJ. A Medico-Legal Treatise on Malpractice and Medical Evidence, Comprising the Elements of Medical Jurisprudence. New York, NY: JS Voorhies; 1860. 38. Ordronaux J. The Jurisprudence of Medicine in Its Relation to the Law of Contracts, Torts, and Evidence. New York, NY: T & JW Johnson; 1869. 39. McClelland M. Civil Malpractice. Chicago, Ill: WB Keen Cooke; 1873. 40. Medical miscellany. Boston Med Surg J.1850;42:67.Google Scholar 41. Medical jurisprudence. Am Law J.1848-1849;1:284-285.Google Scholar 42. Medical miscellany. Boston Med Surg J.1846;35:207.Google Scholar 43. Liability of physicians and surgeons. Boston Med Surg J.1853;48:506-507.Google Scholar 44. Sanger EF. Report of the Committee on Suits for Malpractice. Trans Maine Med Assoc.1878;6:360-382.Google Scholar 45. Culbertson HE. Medical Men and the Law: A Modern Treatise on the Legal Rights, Duties, and Liabilities of Physicians and Surgeons. Philadelphia, Pa: Lea & Febiger; 1913. 46. Wilson LP. The x-ray in court. Cornell Law Q.1921-1922;7:334-351.Google Scholar 47. Oppenheimer BS. A Treatise on Medical Jurisprudence. Baltimore, Md: William Wood & Co; 1935. 48. Crossen HS, Crossen DF. Foreign Bodies Left in the Abdomen: The Surgical Problems, Cases, Treatment, Prevention; The Legal Problems, Cases, Decisions, Responsibilities. St Louis, Mo: CV Mosby & Co; 1940. 49. Regan LJ. Medical Malpractice. St Louis, Mo: CV Mosby & Co; 1943. 50. Linowitz SM. Torts: negligence: malpractice: medical licensing statutes. Cornell Law Q.1936-1937;22:276-280.Google Scholar 51. Starr P. The Social Transformation of American Medicine. New York, NY: Basic Books; 1982. 52. Rothstein WG. American Physicians in the Nineteenth Century: From Sects to Science. Baltimore, Md: Johns Hopkins University Press; 1972. 53. A decision as to costs in suits for malpractice. JAMA.1887;9:839.Google Scholar 54. Problems of negligent malpractise. Va Law Rev.1940;26:919-928.Google Scholar 55. Epstein RA. Medical malpractice: the case for contract. Am Bar Assoc Found Res J.1976:87-149.Google Scholar 56. Stewart GH. Legal Medicine. Indianapolis, Ind: Bobbs-Merrill Co; 1910. 57. Mitchell EV. The Doctor in Court. New York, NY: Rebman; 1913. 58. Law Department, Medical Protective Company. Brief on Malpractice Law. Wheaton, Ill: Medical Protective Company; 1934. 59. Jordan LF. The doctor and the law. Va Law Register.1926;12:88.Google Scholar 60. National Conference of State Legislatures and Georgetown University Health Policy Center. A Legislator's Guide to the Medical Malpractice Issue. Washington, DC: Georgetown University; 1975. 61. Rottenberg S. The Economics of Medical Malpractice. Washington, DC: American Enterprise Institute for Public Policy Research; 1978. 62. Lombardi Jr T. Medical Malpractice Insurance: A Legislator's View. Syracuse, NY: Syracuse University Press; 1978. 63. Malpractice Triangle: Medical, Legal, Insurance Issues (Jan 1970–Dec 1987) . Springfield, Va: National Technical Information Service; 1987. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png JAMA American Medical Association

American Medical Malpractice Litigation in Historical Perspective

JAMA , Volume 283 (13) – Apr 5, 2000

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American Medical Association
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Copyright © 2000 American Medical Association. All Rights Reserved.
ISSN
0098-7484
eISSN
1538-3598
DOI
10.1001/jama.283.13.1731
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Abstract

Abstract Medical malpractice and the problems associated with it remain an important issue in the US medical community. Yet relatively little information regarding the long-term history of malpractice litigation can be found in the literature. This article addresses 2 questions: (1) when and why did medical malpractice litigation originate in the United States and (2) what historical factors best explain its subsequent perpetuation and growth? Medical malpractice litigation appeared in the United States around 1840 for reasons specific to that period. Those reasons are discussed in the context of marketplace professionalism, an environment that provided few quality controls over medical practitioners. Medical malpractice litigation has since been sustained for a century and a half by an interacting combination of 6 principal factors. Three of these factors are medical: the innovative pressures on American medicine, the spread of uniform standards, and the advent of medical malpractice liability insurance. Three are legal factors: contingent fees, citizen juries, and the nature of tort pleading in the United States. Knowledge of these historical factors may prove useful to those seeking to reform the current medical malpractice litigation system. Medical malpractice has been pushed back from the medical headlines in recent years, but the problems associated with malpractice have not gone away. Studies undertaken in the 1980s and 1990s demonstrated convincingly that the current US system of medical malpractice litigation is expensive as a social policy and irrational as a compensatory mechanism.1-12 Readers interested in just how expensive and just how irrational can find plenty of information in those studies and in the subsequent debates they spawned.13-21 But little can be found in those studies about the question that most intrigues a historian: how did the United States come to be in its current situation with regard to medical malpractice litigation in the first place? When the problems associated with medical malpractice resurface again, some understanding of the dynamics that produced our present circumstances might prove useful. This overview summarizes and synthesizes the history of medical malpractice litigation in the United States by posing 2 questions. First, since medical malpractice litigation was almost unknown for the first half-century of the republic, when and why did it appear in the United States? That line of inquiry is based on the assumption that the origins of a phenomenon often shape, and almost always offer insight about, its subsequent development. Second, what factors best account for the persistence and more or less continual growth of medical malpractice litigation to the present time? After all, the phenomenon could have gone away as quickly as it appeared or succumbed to more efficient mechanisms; instead, the system has become ever larger and more deeply entrenched. The origins The general concept of professional malpractice was well embedded in English legal theory by the beginning of the 18th century. In 1768, Sir William Blackstone linked that general concept explicitly to physicians. His famous Commentaries on the Laws of England included under mala praxis (from which we derive the modern word malpractice), "Injuries . . . by the neglect or unskilful [sic] management of [a person's] physician, surgeon, or apothecary . . . because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction."22 Blackstone's Commentaries was widely read in the American colonies and remained influential through the early national period of US history. But as a practical matter, actions for medical malpractice were rarely taken in the United States through the first third of the 19th century. Even at a theoretical level, the medicolegal concept of malpractice was so arcane and so unimportant in the United States that American writers on medical jurisprudence, those most likely to be interested in the subject as an aspect of legal medicine, did not bother to mention it through the first 4 decades of the 19th century. The vast majority of US lawyers would not have known how to draft an action for medical malpractice.23 All of that changed, quite abruptly in historical terms, around 1840. By 1850, medical malpractice litigation as Americans recognize it today was an established phenomenon. Several factors help account for its sudden appearance at that particular point in US history. The onset of medical malpractice litigation corresponded with a sharp decline of religious fatalism and a dramatic rise of religious perfectionism, both of which were associated with the revivals of the 1820s and 1830s. As a result, even fervently religious Americans were less willing than earlier generations to accept physical afflictions as acts of divine providence. This same period also produced both the nation's first widespread efforts to improve physical fitness and its first great food reforms. Americans were coming to the realization, or at least the hope, that bodily well-being could be controlled and, perhaps, even improved upon. Such attitudes were strengthened by a revolution of rising expectations in the medical arena, fed by aggressive and flamboyant medical advertising. With the popular newspapers of the late 1830s and early 1840s full of hyperbolic claims and alleged success stories, patients who failed to improve—or who even regressed—were no longer willing to dismiss unfavorable medical outcomes as either inevitable or normal. And if someone was at fault, it must have been the physician, who could have and, therefore, should have done better.23-29 The most important precondition for the rise of medical malpractice litigation, however, was the advent of what has been labeled marketplace professionalism, a phenomenon unique to the United States at that point in Western history, and one of the most dramatic ways in which professional development in the United States diverged from older European patterns.23 Throughout Europe and the United Kingdom, the learned professions had evolved for centuries under the explicit sanction of whoever ruled their societies. In the United States, however, that traditional sanction was not available, a fact of American professional life that became abundantly clear during the 1830s. Elitism and special statuses of all sorts came under intense fire in the extreme antimonopoly sentiment of that decade. Among the many sectors of American life that were profoundly affected by those sentiments were the professions, particularly medicine and law. The few quasi-regulatory statutes previously enacted at the state level (where professional regulation would have taken place) were repealed, and the separate states made a virtue of opening the professions to any and all practitioners who could persuade fellow citizens to employ their services. No US government was willing to sanction one group of potential professionals and exclude others. Consequently, by 1840, the entire United States had become a place where each profession had to shift for itself, and so did each individual professional. Physicians found themselves adrift as competitive agents, hustling for business in a market that included a wide spectrum of alternative and often antagonistic healers, trained and untrained, ranging typically from the woman down the lane who grew a few herbs in her garden to surgeons who had apprenticed in European hospitals. From the public's point of view, this opening of the professions left few quality controls in place, good or bad. Halting efforts to guarantee standards among various subsets of physicians themselves proved quickly and utterly ineffectual in the face of intense personal rivalries and competing theories of practice. The only alternative for patients was to try to hold individual practitioners, one at a time, to whatever standards they or their lawyers, one at a time, wanted to impose. And lawyers, too, were fiercely hustling for business of their own in the United States' radically open professional marketplace. Just as anyone could have a go at the healing business, so could anyone practice law. Under such wide-open circumstances, suits for malpractice, a previously arcane and quiescent branch of the law, suddenly emerged as a tempting new growth area for aggressive lawyers. American courts encouraged the trend by relaxing the once-rigid standards for initiating civil tort proceedings of all sorts, including medical malpractice actions.30,31 The result was an explosion of medical malpractice suits. From 1840 to 1860, the number of malpractice cases carried to state appellate courts in the United States as a whole roared ahead 950%. The population rose about 85% during that period, which suggests that the rate of malpractice suits jumped abruptly by a factor of roughly 10-fold during the middle 2 decades of the 19th century.27 Medical journals, after more than 50 years of barely noticing malpractice on the medical horizon, suddenly became all but obsessed with the problem. Editor after editor wondered what had happened and what could or should be done.23,28 In theory, the nation's strongest and best-trained physicians might have welcomed the sudden and dramatic increase in the number of malpractice suits as a useful method of driving charlatans and amateur hacks from the field. In 1827, for example, Nathan Smith, MD, at Yale University had complained to his medical students that the state of Connecticut was far too lax in bringing malpractice indictments. "Even the most egregious Quacks escape punishment as things now stand," he grumbled, and he hoped for more action on this front.32 In 1834, the equally prominent R. E. Griffith, MD, at the University of Pennsylvania Medical School made the same kind of complaint about the unwillingness of US governmental authorities to safeguard the public against what he regarded as rampant irresponsibility in medicine.33 Both of those giants of early medical education had envisioned lawyers as potential allies in an effort to improve medical care in the United States. But over and over during the 1840s and 1850s, the nation's best-educated and most professionally minded physicians observed with a sort of defensive incredulity and disbelieving horror that many, if not most, of the burgeoning numbers of malpractice suits were being lodged not against charlatans and amateur hacks, but against others like themselves, the best-educated and most successful physicians. Those suits implicitly revealed one of the most deceptively obvious yet crucial aspects of medical malpractice and pointed to the final reason why the great wave of malpractice litigation originated when it did: there can be no malpractice without established practice; physicians cannot be convicted of deviating from accepted standards if no accepted standards exist. Amateurs and alternative healers had always delivered what patients came to them for, be it hot baths or herbal teas, and could not be sued for undesirable results. They claimed no fixed recipes and made a virtue of treating each case individually. Educated physicians, on the other hand, could have texts and advanced manuals (in steady production by 1840) used against them in court as codified norms from which they could be accused of diverging. Writing from Erie, Pa, in 1849, William Wood, MD, a US Navy physician, understood the frustrations of this principle all too well. "It is better to be without a diploma" in the current climate, he concluded ruefully, because then a "practitioner can say, ‘I make no pretensions, I offer no certificate of ability, and only gave my neighbour in his sufferings such aid as I could.'"34 The nation's best physicians became ironic victims of their own medical advancement in another way as well. The vast majority of lawsuits that constituted the first great wave of malpractice litigation at mid-century involved orthopedic cases in which a limb had healed to a shortened, deformed, or frozen position following compound fracture (simple fractures had been successfully treated since antiquity). Patients found themselves with an unambiguous, easily demonstrated, and visually obvious problem and sued the physicians who set their bone fragments and dressed their wounds. What made this situation ironic was that 20 years earlier, most compound fractures would have been amputated. The patient would have had no limb at all, but no malpractice case either, since the physician would have been following safe and standard procedures. Improved techniques and more careful training produced an advance, but because the consequences of the advance were often imperfect, those who tried to save limbs in difficult cases—something amateurs or inexperienced healers would never dare try—often found themselves being sued. Some of the best physicians in the country stopped taking such cases.35 Finally, patients had little or no incentive to sue marginal healers who had few assets but substantial incentive to sue the most prosperous physicians, from whom they might actually collect money. That incentive, superimposed on the anti-elite, antimonopoly, and antiprofessional ethos of the 1830s and 1840s, gave the United States' first medical malpractice crisis a distinctly class-oriented aspect. Physicians near the top of their profession certainly saw class as a factor in the crisis and regarded many malpractice actions as thinly veiled efforts either to escape payment for a disappointing outcome or to turn misfortune into cash at the expense of a wealthy professional. Medical societies reconsidered their traditional willingness to treat the poor; impecunious patients were made to post bonds against subsequent legal actions before receiving medical treatment; and medical spokesmen railed against what they regarded as the unfair revival and perversion of a long-dormant legal doctrine for the purpose of shaking down the nation's better physicians. Physicians regularly found it easier to forgive bills or settle claims out of court than to fight accusations and risk their reputations, their practices, and possible bankruptcy.27,35 Mid-century medical journals were full of letters and articles from obviously stunned, sometimes bitter, and frequently irate physicians who regarded the spread of malpractice litigation as a quasi-revolutionary assault.36 The burgeoning malpractice crisis of mid-century quickly cut a deep chasm between physicians and lawyers in the United States, a division that still exists.37-39 Many prominent physicians believed that the general public, and especially the poor, would not be attacking the physicians who helped them, often for little or no fee, unless their antagonisms were incited by self-seeking and professionally irresponsible attorneys. By mid-century, the Boston Medical and Surgical Journal was referring to geographical areas where actions for malpractice proliferated as "law-infected districts."40 The embittered physicians were partly right: lawyers did encourage one another to keep expanding what appeared to be a new growth market for their services. In 1848, for example, the American Law Journal noted with disgust that the death of a patient during neck surgery had been ruled accidental. The journal suggested that the same standards of liability should apply in medical cases that applied in any other dangerous trade. The editor likened physicians to boiler mechanics: the former should be as liable as the latter was if clumsiness or lack of knowledge led to an explosion. This law journal likewise considered deaths and complications that followed the administration of anesthetics (just beginning to come into widespread use among US physicians) a potentially fertile new field for lawyers to cultivate more aggressively in the future.41 Lawyers in the 1840s also found a way to expand their pool of potential litigants by bringing suits for alleged suffering that occurred years after the operation at issue had been performed.42 Physicians considered those suits shameless fishing expeditions, and they grew absolutely furious in the early 1850s when lawyers also began to sue physicians not only for what they did but also for what they allegedly failed to do in cases they had not accepted.43 The expression of antilawyer sentiments, which had not been a strong theme in physicians' discourse before 1840, became both common and blatant after mid-century whenever physicians discussed malpractice. To cite a single prominent example, Eugene Sanger, MD, a physician whose 1878 survey of medical malpractice in the state of Maine was one of the most systematic of the early sources of information about this growing phenomenon, believed that malpractice attorneys "follow us as the shark does the emigrant ship."44 Many of his fellow physicians were less metaphorical and less subtle. It would be easy to fill several hundred pages with vituperative, antilegal rhetoric from medical journals after mid-century, but there is little reason to do so now, in the early 21st century, since Americans have become accustomed to strained relations and strong opinions whenever physicians discuss lawyers in the context of malpractice. Suffice it to say that the origins of those now-axiomatic professional tensions lay in the middle decades of the 19th century. Although widespread malpractice litigation burst on the US medicolegal scene around 1840 for reasons specific to that period, its subsequent continuation and growth must be explained in different ways, particularly since a number of other medicolegal phenomena of that period have subsequently disappeared altogether. Hence, the second line of inquiry suggested at the outset: why did the suddenly appearing malpractice crisis of the 1840s not only fail to abate, but continue to expand over the next century and a half to become such a large and securely fixed element in the contemporary US medicolegal firmament? One set of explanations emphasizes developments in US medicine; another set of explanations stresses developments in US law. The remainder of this article briefly addresses the arguments from both sides, arguments that do not come into dialogue with each other nearly as often as they should. Perpetuation and expansion The Medical Arguments Among the medical explanations, 3 propositions stand out. Preeminent among them is the "medical innovations" thesis, or the "ironic victims of their own advancement" thesis. According to this explanation, the competitive nature of the US medical marketplace has driven an ideology of continuous improvement, a relentless push to find better and better therapies, to tout newer and newer procedures. On one hand, this might be viewed as the greatest benefit of the modern system. For thousands of years, both in the East and in the West, healers essentially accepted and applied the wisdom of the ancients; they did not regard themselves as innovators and were overtly skeptical of progress. American medicine changed that radically, and American physicians had to keep striving for constant improvement, or at least the appearance of constant improvement. But, on the other hand, each new technique they tried and each new therapy they experimented with had the potential, especially in the short run, of introducing new patient dangers and new grounds for litigation, as with compound fracture in the 1840s. The spread of x-ray technology provides another excellent example of this dynamic in the early decades of the 20th century. On one hand, radiographs undoubtedly advanced medical practice in dramatic ways, much to the benefit of most patients, and physicians eagerly adopted the new technology. On the other hand, within 20 years of their introduction, radiographs had become one of the nation's most prolific sources of malpractice actions (too much radiation, failure to read the films properly, and so forth). Litigation concerning radiographs produced many of the highest damage awards (>$5000) in the decade prior to World War I and generated a whole new body of evidentiary disputes (eg, ownership of films, interpretation of faint images). Radiographic tests also opened to exposure other sorts of medical mistakes that were previously difficult to demonstrate in court.24,45-49 Although the number of malpractice cases associated with any given innovation tended to fall after an initial (and usually delayed) spike, the number did not fall back to 0. Instead, some statistically predictable percentage of malpractice actions came to be associated with each new procedure, thereby adding to the cumulative total of already existing long-term percentages associated with other ongoing procedures. The result was an after-the-fact layering effect that cumulatively built the total number of malpractice cases as a whole. At the heart of this argument lies a paradox: if medical advancement necessarily involves risk, then the price the United States has paid for a system that has put unprecedented pressures on medical advancement has been unprecedented rates of medical malpractice. A second medical explanation for the persistence and growth of malpractice litigation in the United States builds on the idea mentioned earlier about the necessity for standards against which to measure mistakes. The American Medical Association (AMA) was founded in 1847, by no coincidence during the same decade that the nation's first malpractice crisis burst on the American medical scene. The AMA spent the rest of the century trying to bring order to the medical marketplace, principally by trying to regularize education, establish uniform national standards, and gain the sanction of the state in the form of licensing laws. By the end of the 19th century, the so-called regular, science- and education-oriented AMA-type physicians had gained control over perhaps 80% of US medical practice, and by the early decades of the 20th century, they finally succeeded in gaining reasonably effective licensing laws at the state level. This had the effect of driving dangerously unqualified healers from the field, but at the same time it rendered physicians more vulnerable than ever to malpractice suits, since the license each physician was now required to hold pledged him or her to a set of approved standards, and, in theory, almost any action could be presented as a deviation from those standards. As a result, by the 1930s, almost every physician in the country was in the position that only the most learned physicians had found themselves occupying in the 1840s.24,45,50-52 A third paradox on the medical side of these arguments follows from the advent of liability insurance for physicians. That insurance was regarded as a triumph and a salvation by the physicians who pioneered it at the end of the 19th century.27,35,51 As a professional instrument, it had the beneficial and desired effect of dispersing risk throughout the medical community. Physicians no longer had to face the constant prospect of personal bankruptcy, as they had done since the 1840s, and they embraced liability insurance as an acceptable accommodation to the system of malpractice litigation that had arisen in the United States. But they did not pursue any number of other possible ways to deal with malpractice (such as more vigorous state policing under the new licensing laws), and the rapid spread of liability insurance at the end of the 19th century quickly produced a situation in which nearly every physician was now worth suing. In essence, by successfully responding to the most acute practical problem that malpractice litigation posed for individual physicians, medical liability insurance all but guaranteed perpetuation of the existing system into the 20th century. The Legal Arguments Three principal arguments also stand out among legal explanations for the persistence and growth of malpractice litigation. The first stresses the so-called contingent fee arrangement (and its many variations). The contingent fee was neither invented for nor limited to medical malpractice cases, but it proved to be a major factor in malpractice litigation from the outset. Under that arrangement, plaintiffs risked nothing in bringing charges, then split with their attorneys some portion of any judgment they were able to win, in or out of court. Physicians, who were fiercely committed to fee-for-service arrangements in their own profession, consistently denounced contingent fee arrangements in the legal profession and tried repeatedly to have contingent fees declared illegal or unethical. As early as the 1880s, the AMA regarded "a large proportion" of malpractice actions as having "no other foundation than a desire to extort money from the defendant sufficient to secure a good fee for the prosecuting counsel."53 But physicians gained little headway then or since in the face of egalitarian arguments that every citizen had the right to bargain for legal representation on the best terms available, whether cash was in hand or in prospect. In retrospect, contingent fees have allowed lawyers, who have been under fierce competitive pressures of their own, to sustain medical malpractice litigation by subsidizing the system themselves through the assumption of risk. Because they were risking their own professional capital, however, lawyers have not historically concentrated on all forms of medical negligence, or even on the most intrinsically dangerous specialties. They have gravitated instead toward cases in which negligence appeared easiest to demonstrate in the courtroom, cases that most often produced payments (whether or not the bad outcomes were really the result of medical mistakes), and cases most likely to yield the largest settlements. Those dynamics have tended historically to elevate the frequency of malpractice actions in various specialties at various times (eg, obstetrics in the 1980s), while leaving the vast majority of all patient victims as a whole outside the system and without compensation of any sort. The observation that large settlements have been easier to obtain in some medical areas than in others leads to a second principal legal argument for the perpetuation and growth of malpractice litigation in the United States: the sacrosanct place of ordinary juries in the US legal system. Medical malpractice cases, which historically have been among the most esoteric civil proceedings in the United States, have been tried before juries largely unable to assess substantial portions of the evidence put before them. Recent research has suggested that juries in the late 20th century have been doing a better job with malpractice cases than physicians give them credit for, and a number of scholars defend the jury system in medical malpractice cases on the basis that no compellingly better mechanism can be demonstrated.15 Still, from a lawyer's point of view, the use of ordinary jurors has historically given every case a chance because their presence has challenged the lawyer's ability to influence the uninitiated as much as, and sometimes more than, it challenged the plaintiff to demonstrate genuinely unreasonable harm in what were often inherently gray areas.54 Moreover, ordinary juries have sometimes awarded rather disparate sums in apparently similar cases. As with contingent fees, physicians recognized this factor from the outset, and as early as the 1850s, led publicly by Walter Channing, MD, at the Harvard Medical School, they campaigned vigorously for the use of specially empaneled expert juries in the emerging arena of medical malpractice cases. But the US legal system has rarely permitted neutral fact-finding or third-party adjudication; almost everything has been adversarial, and American law in the 1830s and 1840s was already moving powerfully in that adversarial direction. The empaneling of experts to decide medical malpractice cases was opposed throughout the 19th century by the courts (which saw it as an infringement on their powers), by dissonant medical sects (who objected to privileging some opinions and approaches over others), and by ordinary citizens (who regarded such proceedings as too close to "star chambers" or old-world inquisitorial models they regarded as anathema).23 Adversarial justice as determined by ordinary citizens has remained essentially unchallenged in malpractice cases to the present. A third legal argument for the perpetuation and entrenchment of the nation's current system of medical malpractice litigation involves the unique nature of tort pleading in the United States, though tort pleading has been altered somewhat during the last century and a half. American legal theory defines torts broadly but vaguely as private civil wrongs that violate understood duties or social responsibilities. Torts differ from contracts because the parties to a contract have theoretically agreed in advance on acceptable and unacceptable outcomes. The first wave of malpractice suits in the United States had been brought to court as tort actions. Throughout the second half of the 19th century, courts wavered between continuing to treat malpractice as a tort action and recasting it as a contract action (as an implied contract between physician and patient). In a series of key cases during that period, judges leaned first one way and then the other.27 Had malpractice been transformed into a contract action, as it might well have been in the context of marketplace professionalism and if physicians themselves had pushed for that interpretation, then physicians and patients might have begun to contract for limited liability and thereby might have altered at least some aspects of the developing pattern of malpractice suits.38,45,55 American physicians, however, did not want to be classified with boilermakers and other nonprofessional occupations. Their first priority was to win and retain the legal status of a profession. Consequently, they maintained that the patient-physician relationship could never be a contract between equals, but was instead a situation in which the possessor of knowledge and skill beyond ordinary comprehension offered service to patients who often could not know their own best interests (and, hence, could not contract for them). Physicians also wanted to be judged, as other professionals had historically been judged, principally on their efforts rather than their results. That ideological position served the physicians'professionalizing agenda well and helped them eventually obtain the licensing laws they sought.51,53 But it cost them dearly, both literally and metaphorically, on the malpractice front because malpractice remained a tort: vague, flexible, easily manipulated, and easy to initiate. There have been 3 major periods of tort adjustment since the one that helped sustain the initial burst of malpractice cases in the 1840s. One of those periods corresponded to the so-called Progressive Era during the first 2 decades of the 20th century. During that period, a number of states began to apply the res ipsa loquitur rule (ie, this situation speaks for itself; the mistake appears to be self-evident) to certain types of malpractice cases, thereby placing the legal burden on physician defendants to demonstrate that they had not been negligent rather than on patient plaintiffs to demonstrate that negligence was involved in their adverse outcomes.56-58 Much more importantly, the old "local standards" defense also began to weaken noticeably during this period, as licensing laws spread across the nation and physicians were expected to keep up with their fields.45,47,56,59 In the wake of the Progressive period, the number of actions for medical malpractice increased sharply during the 1920s and 1930s.24 A second period of adjustment occurred during the consumer-conscious 1960s, which, among other things, legitimated a quantum leap in the amount of money awarded in tort actions. The reality of new thresholds became apparent to physicians as the average award in medical malpractice actions more than tripled between 1975 and 1985, helping trigger the malpractice crises of that era.2 In response, a third period of attempted tort adjustment is now under way, in which physicians have joined insurers and businesses in an effort to curtail tort actions and to cap or reduce tort awards. Conclusion Of the 6 principal factors that perpetuated and expanded the current system of medical malpractice litigation after its appearance around 1840, 5 remain powerfully in place. Indeed, each of these 5 remains socially or professionally compelling when considered separately. American medicine, for example, almost certainly will and almost certainly should continue to place a high premium on innovation. That commitment to progress is probably this nation's greatest contribution to the long-term development of medicine in general, even though medical advances have helped drive the nation's long wave of malpractice litigation. It is also in the public interest that the best medical procedures become ever better prescribed and universalized, even though closely prescribed procedures render physicians vulnerable to charges of deviating from them. Few Americans have indicated any desire to prevent lawyers from taking risks, even if the lawyers decide for themselves which risks to take; nor have they shown any willingness to deny the poor their day in court, which suggests that contingent fee arrangements are not likely to disappear anytime soon either. And, notwithstanding some movement in recent decades toward special judicial panels (particularly in complicated business and accounting cases), the nation's commitment to the ultimate mechanism of the ordinary jury is also likely to remain unshakably in place. Finally, given rising levels of compensatory consciousness on many fronts, not just in medical situations, tort actions show no sign of diminishing in volume or importance. Indeed, the room for growth in the number of medical malpractice suits is theoretically large. The one long-term historical factor in which changes in the present system might most logically occur involves the insurance mechanisms worked out at the end of the 19th century. In making the problem manageable, those insurance mechanisms implicitly accepted and institutionalized the larger patterns of malpractice litigation that had emerged by that time, whether or not those patterns were optimal for the future. Over the ensuing century, as the phenomenon of malpractice litigation continued to expand, the essential irrationalities and skewed costs of the system became increasingly obvious and expensive. The insurance mechanisms put into place earlier had to strain ever harder to mask those irrationalities and damp out their rising social costs, but the mechanisms continued for the most part to keep the system at least manageable. During the crises of the 1970s and 1980s, those older mechanisms appeared to be approaching their breaking points, even though the rate of medical "mistakes" had not significantly changed. Basic manageability itself appeared to be seriously endangered.2,3,10,60-63 Investigations were launched and governmental authorities tried to tweak the system gingerly in various ways, but their experiments and interventions had limited long-term impact.7 Massive infusions of investment capital have since cushioned the system through the roaring economy of the 1990s, but premiums are certain to rise even if such favorable conditions continue. Under more difficult conditions, premiums will soar. Intervention of some type may then be required in the future simply to keep some specialties available in the medical marketplace. But whenever the next crisis comes and regardless of what form it takes, those seeking reform should consider not only the immediate panic but the entire complex of interacting historical forces that produced, perpetuated, and expanded the present system of medical malpractice litigation in the United States. References 1. Danzon PM. 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Journal

JAMAAmerican Medical Association

Published: Apr 5, 2000

Keywords: malpractice,medical malpractice,litigation,professionalism,pressure-physical agent,fees and charges,quality control

References