symptoms of may be neces­ Patients with Psychogenic sary. These often include feeling “down” or “blue,” unprovoked crying spells, easy fatigability, inability to R. A. De Vaul, M D, Sidney Zisook, M D, and H. James Stuart, MD concentrate, loss of efficiency, a lack Houston, Texas of interest and satisfaction in work, withdrawal from family and friends, sleep disturbance (particularly early morning awakening), loss of appetite, weight loss, loss of interest in sex, constipation, and suicidal ideation. This article describes characteristics of groups of patients with a Periodicity is also a characteristic of high probability of having pain complaints on an emotional basis. depressive pain.7 In addition, a past history of depression, alcoholism, acci­ An approach to patients with psychogenic pain, including manage­ dent proneness, or manic episodes, as ment suggestions, is emphasized, with particular reference to the use well as a family history of either of extensive history for their identification and the importance of depression, alcoholism, or sociopathy minimizing unnecessary medical and surgical procedures. helps to corroborate the diagnosis.8 Once identified, depression (and accompanying pain) can often be re­ Evaluating pain complaints is a conversion symptom of hysterical lieved by a three-week trial of tricyclic large part of medical and surgical ; (4) pain as a symptom of an antidepressants in the 100 and 200 mg practice.1 While pain is generally con­ unresolved reaction; and (5) pain per day range. It makes little differ­ sidered an indication of physical illness as a symptom of a “need to suffer.” ence which tricyclic antidepressant is or distress by both the patient and The following are brief case illustra­ used, so long as adequate doses are physician, it is often emotional in tions and discussions of each of the given over a long enough period of origin and not due to organic pa­ subgroups of psychogenic pain pa­ time. Should this fail to produce thology.2'4 Pain of emotional origin tients with emphasis on identifying significant improvement, electrocon­ or “psychogenic pain” is a real percep­ characteristics and management vulsive therapy might well be tion and is usually accompanied by all strategies. considered.9 the physiologic concomitants of or­ Case Presentations ganic pain. In addition, neurologic findings such as paresthesias and func­ Depression tional motor weakness are common.2 Mr. L. is a 21-year-old, white, single Mr. F. is a 56-year-old, white, mar­ This similarity of organic and psycho­ machinist, admitted to the psychiatric ried accountant, father of two, genic pain frequently leads to unneces­ service complaining of persistent burn­ sary and inappropriate medical proce­ admitted to the surgery service with a ing pain in his right shoulder from dures or surgery to rule out any chief complaint of severe, continuous, “cosmic rays being broadcast by the possibility of organic etiology. Pain left upper quadrant abdominal pain of local radio station.” The patient’s medication or tranquilizers are fre­ three weeks’ duration. Medical evalua­ presentation and history were consis­ quently prescribed in lieu of manage­ tion, including complete laboratory tent with the diagnosis of schizo­ ment strategies appropriate to the and x-ray survey, was negative. Fur­ phrenic psychosis. He had received an emotional nature of the pain. Neither ther history revealed three months of electrical burn in his right shoulder at placebo trial nor psychological tests increasing depression. Symptoms the age of six, working in his father’s are reliable in differentiating the origin included early morning awakening, workshop. The patient’s acute psycho­ of pain.5 However, a productive loss of appetite, a 20 lb weight loss, sis and his pain resolved with anti­ approach is the use of extensive loss of interest in sex, unprovoked psychotic doses of phenothiazines. medical history and the clinical presen­ crying spells, and occasional suicidal Delusional pain may be seen in tation to identify patients with a high ideation. During the initial history, the many types of psychiatric illness other probability of psychogenic pain. These patient had presented only his pain than , including hysteri­ symptom. However, the symptoms of patients usually have characteristics of cal psychosis, , depression, toxic depression were obtained from the one or more relatively well-defined , and other organic brain patient and his family upon direct subgroups: (1) pain as a symptom of syndromes. Like other , the questioning. The patient responded to depression; (2) pain as a delusional pain is a fixed symptom, resistant to tricyclic antidepressants with complete symptom of psychosis; (3) pain as a all reassurance or medical evidence to relief of his pain. the contrary. The pain description is Pain is a well-documented symptom usually bizarre and is frequently of depression.6 Typically, a careful presented in a very atypical, symbolic history will reveal the onset of depres­ way. From the Department of , The University of Texas Medical School, sion preceding the pain complaint. The frankly psychotic patient is not Houston, Texas. Requests for reprints However, the patient sometimes com­ should be addressed to Dr. R. A. DeVaul, difficult to recognize. However, a brief Assistant Professor, Department of Psychi­ plains only of pain, and direct and structured interview may not atry, Health Science Center at Houston, The University of Texas, P.O. Box 20708, questioning of the patient and his reveal the extent to which a less Houston, Tex 77025. family regarding other signs and disturbed patient has lost contact with

t h e JOURNAL OF FAMILY PRACTICE, VOL. 4, NO. 1, 1977 53 reality. A more extensive and non­ relationship, and occurs as a significant illness.12 When questioned, these pa­ directive history will usually demon­ part of any medical intervention. How­ tients report an inability to cry suffi- strate the patient’s chaotic state and ever, it is not useful in the differential ciently for the dead person, a need to reality impairment. These patients are diagnosis as it significantly relieves cry in order to feel relieved, a lack of best referred for psychiatric treatment. organic pain.11 In addition “fooling” conviction that they have been able to Appropriate antipsychotic treatment the patient jeopardizes the trust grieve, and often a history that they generally leads to resolution of the essential for a constructive medical have not attended the funeral. delusional pain and other symptoms of intervention. One striking form of unresolved psychosis. Effective management of this group grief reaction is illustrated by the case of patients frequently requires a two- example. The patient presented to the Hysterical Neurosis stage strategy. First, the physician medical service with symptoms of her Miss D. is a 14-year-old, white, high should reassure the patient that there deceased mother’s illness. Identifica­ school student, admitted to the sur­ is no evidence of serious medical or tion with the person who has died is a gery service with a chief complaint of surgical illness and suggest that he will normal part of grief; in unresolved crampy, lower abdominal pain. Medi­ feel better shortly. A minor analgesic grief, it may take the pathologic form cal evaluation was negative, including may be prescribed with the strong of enduring symptoms and signs of an laboratory and x-ray evaluation. The suggestion of relief. This will be illness of the person who died. The patient seemed relatively unconcerned especially useful for acute symptoms patient’s description of the pain about the pain and was noted to be that tend to begin and end suddenly. complaint is usually in the same terms seductive and manipulative. The pa­ For patients who fail to respond to as his description of a similar symptom tient described her pain as “like being reassurance and suggestion, the next of the deceased. in labor.” History revealed the patient step is confrontation. The patient is Patients with pain as a symptom of wanted to have a baby, and was unable told that there is no doubt about the an unresolved grief reaction are to deal with her sexual feelings. validity of the pain and but important to identify to initiate Despite a diagnosis of conversion pain, in all likelihood it is a manifestation of proper treatment. Weekly counseling the patient was operated on with emotional . Following the usual with the family physician, minister, negative findings at laparotomy. mixed response of perplexity, anger, priest, or social worker often mobilizes Pain as a conversion symptom is a and disappointment, the patient may a grief reaction with complete relief of neurotic solution to a personal con­ be willing to discuss personal problems the symptoms. Counseling involves en­ flict. Its characteristics often include: and agree to appropriate counseling or couraging the patient to talk about the (1) a pain description that relates to social intervention. A genuine concern person who died and express the the underlying personal conflict (this and willingness to continue to follow intense attendant emotions. Since patient’s pain was described as similar the patient medically is crucial to this grieving is painful, the patient needs to''someone in labor and prevented her approach. support to proceed and frequently from acting on her desire to become feels worse before beginning to pregnant), (2) inappropriate indiffer­ Unresolved Grief Reaction recover.13 ence to the pain despite its continued Mrs. L. is a 24-year-old, white, presence, (3) sudden onset in an married mother of two, admitted to " 4 Need to Suffer" emotionally charged situation, (4) a the medical service, with intermittent Mrs. K. is a 45-year-old, white, pain description that defies neuro- substernal chest pain of two months’ married mother of two, admitted to anatomical boundaries, (5) an associ­ duration. A diagnosis of angina was the surgery service for persistent ated gratification of dependency needs made on the basis of history. Further abdominal pain. She was dependent and relief of unpleasant responsibilities history revealed that the patient’s upon meperidine (Demerol) and had that the patient would find unaccept­ mother had died quite suddenly of a taken multiple analgesics and tranquil­ able in good health.10 heart attack approximately two weeks izers without relief in the past. The Conversion pain is goal-directed. A before the patient’s symptoms began. patient had had 35 abdominal opera­ situation or problem can be identified The patient had been unable to attend tions for similar pain. Medical evalua­ for which the patient’s pain is an the funeral, cry, or accept the fact that tion, including laboratory and x-ray attempted solution. It is commonly her mother was dead. Descriptions of screen, was negative with the excep­ seen in settings of marital discord, her and those that her mother tion of reported pain on palpation. family problems, job difficulties, and experienced were identical. With en­ Further history revealed the following: non-recovery from traumatic injuries, couragement, the patient was able to despite the description of pain as particularly if they involved disability grieve with disappearance of her chest intolerable and unrelieved by anal­ or compensation. pain. gesics, the patient appeared engaging, Psychiatric evaluation, hypnosis, or The death of a close family member animated, and comfortable while dis­ Amytal interview may help confirm or friend is usually followed by a cussing her problem. She appeared to the diagnosis. Placebo medications are period of mourning or grief. Resolu­ relish talking about her many medical frequently misused in the differential tion of grief is a gradual process which encounters and surgical procedures. diagnosis of conversion pain because leads to an acceptance of the loss and Her review of the abdominal opera­ of a lack of understanding of the the ability to get on with one’s life. tions revealed a repetitive pattern, placebo effect. This effect is powerful, Patients who are unable to grieve or Each time, the patient was rejected by derives from the suggestions and who have unresolved grief reactions an initial surgeon, but then found a expectations of the physician-patient are a high-risk group to develop mental second surgeon who would operate for

54 THE JOURNAL O-F FAMILY PRACTICE, VOL. 4, NO. 1, 1977 her persistent pain. The patient’s pain analgesics or surgical interventions. emotional origin, and more important, always returned in a few days after the Their pain complaints usually escalate will collude with the patient in viewing operation. Past history was remarkable if their physician is optimistic, en­ his problem as a medical illness.4 for descriptions of constant tragedy couraging, or reassuring. Once identified, these patients are and suffering. She recalled always Patients whose pain is a symptom most effectively handled by a general having to work very hard as a young of a “need to suffer” present two approach that includes: (1) sympa­ girl, and her only reprieve was illness. major management problems. First, thetic and direct confrontation on the Her mother had multiple illnesses and the patient’s life-long pattern of suffer­ likely emotional origin of their multiple surgery. It was noted that ing in an attempt to satisfy an intense symptoms, (2) specific recommenda­ some of the patient’s operations coin­ need for love and acceptance (“You tions for further evaluation or treat­ cided in time to those that her mother must love me because I suffer”) ment of their emotional problems had experienced. The patient denied characterizes the doctor-patient rela­ (social service, psychiatric evaluation, any problems in her current living tionship. To improve or recover during antidepressants), and (3) most impor­ situation. She insisted that everything treatment would mean losing a major tant, the willingness to continue to see would be all right if she could just get source of gratification. Therefore, the the patient as the primary physician. some relief from her pain. It was also patient’s suffering must be acknowl­ While not all patients will accept this noted that any attempt to encourage edged and recommendations for recov­ approach, it has two very important or reassure the patient increased her ery should be presented as an addi­ advantages. It recognizes the real complaints of pain. tional burden to the patient, especially nature of the patient’s problems and This case illustrates many character­ for someone else’s benefit.14 offers the patient an opportunity to istics of a large group of psychogenic Second, these patients have often use resources that may be helpful in pain patients. Evidence that the adopted the role of career patients, resolving his emotional problems or patient requires pain and suffering insisting that the doctor attempt to problems in living. Most important, it dominates the clinical picture.3 Their cure and relieve their suffering while minimizes the extremely high risk of life histories are filled with personal they maintain their role of the intrac­ these patients having unnecessary med­ tragedy and interminable suffering table sufferer. It is extremely ical procedures, surgical operations, which is attributed by the patients to important that the physician refuse to and iatrogenic drug dependence.1 5 misfortune. However, careful scrutiny attempt to cure the patient and is not reveals that the patient has repeatedly manipulated by insistent demands for placed himself in situations that were heroic attempts at diagnosis or pain bound to fail. A striking feature is the relief.4 The physician must insist that References onset of painful symptoms when medical treatment be on his terms, and 1. Baker JW, Mersky H: Pain in general practice. Psychosom Res 10: 383-387, 1967 things are going well for the patient, should include: (1) confronting the 2. Walters A: Psychogenic regional and their remission in times of patient with the choice of continuing pain alias hysterical pain. Brain. 84: 1-18, 1961 external stress. One patient remarked, as a sick patient for whom there is no 3. Engel GL: Psychogenic pain and the “My life reads like a bad novel,” and medical treatment or attempting the pain-prone patient. Am J Med 26: 899-918, 1959 “just when things seem to be going more difficult burden of learning to 4. Szasz TS: The psychology of persis­ tent pain: A portrail of I'homme douleu- well for me, I end up sick again.” live with the pain and attempting to reux. In Soulairac A, Cahn J, Charpentier J Past history usually includes depri­ overcome the resultant disability; (2) (eds): Pain. New York, Academic Press, 1968 vation, physical abuse, and hard work withdrawal of all unnecessary medica­ 5. Sternback, RA: Pain Patient, Traits as a child. Illness is recalled as a respite tions; and (3) gradual return to work, and Treatment. New York, Academic Press, 1974 and a time of special attention and family, and social responsibilities.9 6. Kielholz P: . concern from parents. Often a family Bern, Switzerland, Hans Huber Publishers, Discussion 1973 member, especially the mother, has 7. Held RRP: Depressions a expression somatique. Rev Prat (Paris) 13: 3001-3008, multiple illnesses and has been a model Patients with pain of emotional 1963 for pain behavior. Patients with origin present special problems to busy 8. Winokur G, Cadoret R, Dorzab J, et a!: Depressive disease: A genetic study. Arch multiple surgeries usually have their physicians. Most will not be reassured Gen Psychiatry 24: 135-144, 1971 first operation as an adolescent, and by the negative medical examination 9. Mandel MR: ECT has been recently shown to affect drug resistant pain com­ many have succeeding surgeries at the and the physician’s assurance that plaints — electroconvulsive therapy for same age that their parents underwent associated with depression. Am there is no evidence of serious disease. J Psychiatry 132: 632-636, 1955 similar procedures. They insist on pain relief and pressure 10. DSM-II, Diagnostic and Statistical Manual of Mental Disorders. Washington, Another characteristic is the fre­ physicians to confirm the medical DC, American Psychiatric Association, 1968 quent report that everything is fine in nature of their discomfort. At this 11. Frank D: Persuasion and Healing. Baltimore, The John Hopkins University the patient’s family relations, mar­ point a more extensive history should Press, 1973 riage, and work situation, despite all be taken in lieu of the usual additional 12. ParkesCM: Recent bereavement as a cause of mental illness. Br J Psychiatry 110: evidence to the contrary. investigations or pain medications. 198-204, 1964 13. Lindemann E: Symptomatology and The way these patients relate to This history is likely to provide management of acute grief. Am J Psychiatry their physicians is of particular evidence for the pain’s emotional 101 : 141-148, 1944 14. Kahana RJ, Bebring GL: Person­ importance. There is a great intensity etiology which requires alternative ality types in medical management. In about the relationship and an urgency management strategies. This is a criti­ Zinberg NE (ed): Psychiatry and Medical Practice in a General Hospital. New York, to be identified as a suffering patient. cal decision; further investigative International Universities Press, 1964 Their pain is intolerable and never procedures or drug treatment will not 15. Chertok L: Mania operativa: Surgi­ cal addiction. Psychiatry Med 3: 105-118, significantly relieved by numerous be effective in treating pain of 1972

THE JOURNAL OF FAMILY PRACTICE, VOL. 4, NO. 1, 1977 55 Continued from page 36 Memorial Hospital, the landmark case lie interest imposing a duty of care is in institutional medical care provision the same public interest which makes liability, seems to have partially relied on this factor. The Illinois Supreme Continued from preceding page. the duty “nondelegable.” In Tunkl v Regents of the University of Cali­ Court held for the plaintiff, who had Brief summary of fornia1 18 the court’s decision to inval­ argued the hospital was negligent in prescribing information. idate the hospital’s disclaimer clause not adequately controlling plaintiff’s was based on the hospital’s performing physician “. . . especially since Dr. 0.5 Gm tablets a service of great public impor­ Alexander had been placed on emer­ tance.119 The duty of care in provid­ gency duty by the hospital . . ,”124 ing medical care that GPHPs and hos­ In another hospital liability case the pitals hold is too important to be court counted the plaintiff’s inability avoided.120 to choose and the defendant hospital’s Consumers’ Limited Choice of sole ability to choose the malprac- Physicians. The GPHP contract severe­ ticing doctor as a reason for holding ly limits the consumer’s choice of the hospital to be the employer/master tolbutamide, Upjohn physicians, while the plan is allowed to of the physician. Clearly, physician Orinase (tolbutamide). Orinase does not obviate need for maintaining standard diet regulation. choose and limit the number of physi­ choice by the institution superseding Uncooperative patients should be considered cians. The rationale behind this choice by the patient is a strong unsuitable for therapy. Prescriptions should be refilled only on specific instruction of physi­ “closed panel” is that the GPHP has indicator of institutional liability for cian. In treating mi Id asymptomatic diabetic pa­ tients with abnormal glucose tolerance,glucose knowledge enabling it to select higher lack of care in selection, and for other tolerance tests should be obtained at three to quality physicians than the consumer theories of institutional liability as six-month intervals. Orinase is not an oral in­ sulin or a substitute for insulin and must not be could,121 and that limiting the quan­ well. used as sole therapy in juvenile diabetes or in tity and raising the quality of the diabetes complicated by acidosis or coma where insulin is indispensable. physicians allows the GPHP to pay the Contract Between Plan and Sub­ If phenformin is prescribed in combina­ provider tion with Orinase, appropriate package litera­ doctors a fixed sum and reduce con­ ture should be consulted. sumer costs. Quality Control Regulations. The Adverse reactions: Severe hypoglycemia, though uncommon, may occur and may mimic Not only should this limited choice contract between the plan and the acute neurologic disorders such as cerebral by the consumer and selection by the nonemployee subproviders may indi­ thrombosis. Certain factors such as hepatic and renal disease, malnutrition, advanced age, GPHP (two related but separately sig­ cate plan control through the number alcohol ingestion, and adrenal and pituitary in­ nificant factors) cause a duty of care sufficiency may predispose to hypoglycemia and strength of care quality regula­ and certain drugs such as insulin, phenformin, in selection to attach to GPHPs, but tions the plan imposes upon the sub­ sulfonamides, oxyphenbutazone, salicylates, these factors argue as well for other probenecid, monamine oxidase inhibitors, provider.126 Through their indication phenylbutazone, bishydroxycoumarin, and GPHP liability theories. The con­ of plan control of subproviders and phenyramidol may prolong or enhance the action of Orinase and increase risk of hypo­ sumer’s limited choice and the GPHP’s the care provided, these quality regula­ glycemia. Orinase long-term therapy has been assumption of that function is a strong tions should indicate plan liability for reported to cause reduction in RAI uptake without producing clinical hypothyroidism or indicator of the GPHP’s role as the malpractice by a subprovider. thyroid enlargement and at high doses is mildly medical care provider. Even the choice Conversely, plan liability for sub­ goitrogenic in animals. Photosensitivity reac­ tions, disulfiram-like reactions after alcohol of physician has been institutionalized. provider malpractice may encourage ingestion, and false-positive tests for urine The consumer is choosing an institu­ albumin have been reported. the plan to insert quality control Although usually not serious, gastrointes­ tion and not a physician to provide his regulations into the plan/subprovider tinal disturbances (nausea, epigastric fullness, and heartburn) and headache appear to be care. contract because such regulations are dose related and frequently disappear with The patient’s traditional freedom of presumed to enhance the quality of reduction of dose or administration with meals. Allergic skin reactions (pruritus, erythema, choice of physician has long motivated medical care provision. Curran and 12 2 urticaria, and morbilliform or maculopapular courts to deny hospital liability. Moseley advise that GPHPs incor­ eruptions) are transient, usually not serious, and frequently disappear with continued ad­ But hospital emergency rooms are one porate some procedural devices to ministration. Orinase should be discontinued area where the hospital often chooses if skin reactions persist. Recent reports indicate protect against actual malpractice that long-term use of Orinase has no apprecia­ the physician, and hospital liability for occurrences. Among them are specific ble effect on body weight. malpractice in the emergency room Orinase appears to be remarkably free and rigorous criteria for granting and from gross clinical toxicity: crystalluria or other often results. withdrawing hospital privileges or renal abnormalities have not been observed; membership in the medical group, incidence of liver dysfunction is remarkably The rule may fairly be deduced from the low and jaundice has been rare and cleared contractual provisions establishing an readily on discontinuation of drug (carcinoma decisions of this court that when a person of the pancreas or other biliary obstruction goes to a hospital for treatment for a effective quality review committee, should be ruled out in persistent jaundice); compulsory continuing education of leukopenia; agranulocytosis; thrombocyto­ particular malady, and expresses no prefer­ penia; hemolytic anemia; aplastic anemia; ence as to the physician by whom he is to medical professionals, and incentives pancytopenia; and hepatic porphyria and porphyria cutanea tarda have been reported. be treated, and is there directed to or and penalties for high and low quality How supplied: 0.5 Gm Tablets-bottles of 50, assigned to a reputable physician, one who medical care. Specific procedures re­ 200, 500 and 1000 and cartons of 100 in foil is not in that respect an employee of the strips. quiring supervision of paramedical per­ For additional product information, see hospital and who is apparently qualified to sonnel by medical professionals are your Upjohn representative or consult the treat such malady, it is the duty of those in package insert. also recommended.127 charge of the hospital to exercise reasonable These regulations are analogous to Upjohn care in the selection of the physician. . ,123 the hospital bylaws and accreditation The Upjohn Company, Kalamazoo, Michigan 49001 J-5112-6 MEDB-6-S Darling v Charleston Community Continued on page 59

58 THE JOURNAL OF FAMILY PRACTICE, VOL. 4, NO. 1, 1977 Continued from page 58 liability when a physician-provider tals. Exceptional examples of the need standards in Darling, indicating the malpractices. The theories here are and the feasibility of liability in the institution’s duty of care.1 So, that certain effects of GPHP liability GPHP field will be brought out in the GPHP contractual regulation of its are desirable and should be en­ following discussion of the appro­ subproviders may help define the couraged, and that certain effects of priateness of plan liability. scope of the plan’s duty in addition to GPHP nonliability are undersirable and Three aspects of GPHP structure indicating the need for plan liability. should be discouraged. and function highlight the deterrent First, the regulations indicate the Professors Harper and James postu­ effect of imposing liability on the plan plan’s ability to control and its actual late that tort law consists primarily of: in addition to or instead of other control of the subproviders’ care. (1) measures to reduce accidents and entities: capitation contracts, quality Second, because it is widely believed (2) measures which minimize the bad control procedures, and physician that these regulations do reduce mal­ effects of accidents which do oc- selection by the plan. practice, and therefore malpractice cur. But these measures must not The peculiar motivation to reduce suits, plan liability will motivate plans unduly inhibit valuable but dangerous the quality as well as the quantity of to incorporate such regulations and activity and must on the whole satisfy medical care that capitation clauses other malpractice reducing procedures the ethical or moral sense of the and other savings incentives inserts into their plan/subprovider contracts. community: its feeling of what is fair into the GPHP structure and the need Capitation Contracts. Another sub­ and just. Therefore, among the possi­ to counterbalance it has been dis- stantial reason for encouraging plans ble objectives of tort law in accident cussed previously. 13 5 to increase the quality of their sub­ cases are: (1) deterrence; (2) compen­ Plan liability will counteract the providers’ care arises from the capita­ sation; and (3) fairness. But in achiev­ negative incentive because the plan tion compensation clauses in GPHP ing these objectives courts must avoid writes the contracts, including the contracts. Because capitation discouraging desirable activity or im­ capitation clauses. It contracts with clauses shift the risk of over-utilization posing a disproportionate burden on the consumer on a capitation basis, to the subprovider, the plan is en­ any members or groups in society. It and therefore plan liability will neu­ couraging the subprovider to keep its should, of course, be kept in mind that tralize its own incentive to cut corners. costs down, which in theory should tort law is not the only device for The plan imposes capitation compen­ encourage health maintenance medi­ social control of the accident problem. sation on its subproviders, and there­ cine, but which may encourage the A rule of tort liability may not, fore plan liability will encourage the subproviders to provide less or lower therefore, be condemned, and may plan to neutralize its imposition of a quality care. 130 well be fully justified, if it promotes negative incentive on subproviders by The answer to this problem is not only one or two of these objectives, imposing counteracting measures in its eliminating capitation clauses. They provided that the rule does no violence plan/subprovider contract.136 The are fundamental to the GPHP concept to the other objectives, and provided appropriateness of plan liability to and serve a legitimate public policy: that these other objectives are being counterbalance capitation negative in­ reducing medical care costs by elimi­ served as well by other devices of centives is a fairly commonly accepted nating excess usage and by empha­ social control as they would by the principle among those knowledgeable sizing health maintenance medicine. tort rule which is the alternative to the of the legal problems of GPHPs.137 Capitation clauses even counteract the one under consideration. The need and feasibility of internal motivation ordinary physician mal­ Many of these economic and policy quality control procedures has also practice liability imposes on doctors to theories have already been discussed in already been established. Plan li­ practice wasteful “preventive medi­ this paper.134 Some will be touched ability is clearly the appropriate mech­ cine.”131 on again, some will not. All of Harper anism to encourage these procedures Yet, something more than faith in a and James’ objectives will be dis­ and therefore deter malpractice. Be­ physician’s integrity must balance the cussed, if only briefly, in the context cause plans presume that such proce­ negative motivation these clauses pro­ of GPHP liability when a physician- dures reduce malpractice, if they also vide. Clearly, this balancing motivation provider has malpracticed. know they will suffer financial loss as should be applied at the plan level of Liability as a Deterrent. The ques­ a result of each malpractice, they will the structure. It imposes the capitation tion of whether malpractice liability impose such procedures through their clause, is the unit the consumer con­ should be imposed upon a plan as a contracts. Furthermore, it is known tracts with, and has the power to deterrent may be separated into three that large units (such as GPHPs) are in regulate the quality of the subpro­ closely related inquiries: (1) are there a strategic position to reduce accidents vider’s care. Malpractice liability im­ reasonable foreseeable activities that (such as malpractice). This is because posed upon the plan will also neu­ need deterring (or encouraging); (2) is liability creates more pressure to pre­ tralize the plan’s own motivation to it feasible for liability to deter (or vent accidents on large units than on encourage subprovider care skimping encourage) these activities; and (3) is it individuals, and large units are in a far resulting from the plan’s capitation appropriate to place liability at the better position than individuals to contract with its consumers. Public plan point of the medical care struc­ reduce accidents. 13 9 policy therefore dictates plan liability. ture? Because the plan, and not the con­ The first two questions have impli­ sumer, always has the direct power to Economic and Policy Factors citly been answered affirmatively by select its physicians, the appropriate­ This section will focus on economic the reasoning in previous cases apply­ ness of imposing liability at the plan and policy factors that indicate GPHP ing liability to physicians and hospi­ Continued on page 60

t h e JOURNAL OF FAMILY PRACTICE, V@'L. 4, NO. 1, 1977 59 Continued from page 59 expense shared by all of the GPHP’s distributes accident losses over society level is obvious;140 the plan will be consumers, not a penalty for “bad without regard to fault.154 encouraged to select carefully. Addi­ behavior.”148 There is evolving in tort law a tionally, the difficulty GPHPs are hav­ Finally, it has been argued that shifting of emphasis from the fault ing in procuring physicians accentuates GPHPs should not be liable because an principle based on personal moral ob­ the need for and appropriateness of adequate remedy already exists — jectives to a system closer to social plan liability. physician, hospital or medical group insurance, based on social moral objec­ liability. While the entirety of this tives; this process is occurring in There are strong indications of a tight health-care institutional liability law. market for doctors willing to join HMOs. As article has answered this largely irrele­ To explain: the more objective (ex­ a result, the HMOs probably are lowering vant argument, some further com­ their standards for hiring new doctors and ments are appropriate here. Making ternal, idealistic) the reasonable person are not being as strict in disciplining doctors the GPHP liable increases the injured standard (ie, less subjective: not taking already hired. consumer’s opportunity to recover, into account the individual personal GPHPs are having the most diffi­ but not necessarily the amount of the equation involved in the actions lead­ culty recruiting neurosurgeons, obste­ award, for several reasons. The stan­ ing to the suit), the less personal fault trics-gynecologists, radiologists and dard of care required of the GPHP is involved in determining liability. As other specialists. These are precisely may be that of the ordinarily reason­ pressure toward a social insurance the specialties that have the highest able person, rather than the profes­ theory of tort law becomes more incidences of malpractice claims sional standard applied to physicians, dominant, the trend during the period against them. Therefore, some GPHPs thus possibly avoiding the requirement of transition will be toward greater are lowering their physician quality of expert testimony and therefore objectivity of the standard as applied standards for precisely those types of avoiding any “conspiracy of silence.” to defendants.1 55 physicians who have the worst mal- Additionally, a longer statute of limi­ This is what the Darling156 court practice claim record. It seems fair tations period may apply149 and a res did. In allowing the institution’s staff to conclude that imposing selection, ipsa loquitur theory may be available regulations, accreditation standards, control and contract liability upon the against a GPHP because of its gener­ statutes, and the custom of other plan is not only appropriate, it is alized duty and control and the com­ hospitals in the national community to compelling. plex integrated care it provides. The define the hospital’s standard of care, Liability as Compensation. “The GPHP’s greater financial resources150 the court objectified the defendant’s cardinal principle of damages in are, of course, also a factor. standard and moved a step closer to a Anglo-American law is that of com­ Furthermore, the policy of liability social moral objective. pensation for injury caused to the as a deterrent argues for GPHP liabil­ The Darling court’s reliance on plaintiff by defendant’s breach of ity, without regard to hospital, medi­ regulations, standards and health care duty.”143 Even under the newer, cal group and physician liability. The quality statutes to fulfill the moral more equitable liability systems (no plan itself should also be encouraged objective for liability should be dupli­ fault, strict liability), the major goal is to reduce patient injuries.151 Finally, cated for GPHPs. Society has begun to victim compensation. Obviously, the no good reason appears for exempting demand of GPHPs what it does from public policy of compensation applies GPHPs from liability. hospitals. GPHP statutes in at least to GPHP liability as much as it does to Fairness. The principal philosophi­ three states require either that reason­ any other situation. To assure proper cal justification for the fault liability able standards of quality of care be allocation of limited resources in a free system lies in morality. It does not met or that internal procedures for society, every enterprise must pay its ordinarily seek to punish wrong-doers, quality control be established. The own accident costs. 1 4 4 but to compensate victims. It is fair to Federal Health Maintenance Organiza­ GPHPs have the resources to com­ make the actor/defendant compensate tion Act of 1973 specifically requires pensate their injured consumers. “In the victim/plaintiff if the actor is at ongoing quality assurance programs anticipation of malpractice claims, all fault. But if the actor is without fault and continuing education program for HMO’s carry malpractice insurance or the victim is also at fault, there covered GPHP health professional coverage.”145 And plan liability will should be no compensation. Some staff.158 Additionally, most GPHPs work to “make whole” the victim in sense of fairness is satisfied by the have quality control procedures similar notion that the actor had a choice and to, or more extensive than, the defen- more than a monetary sense. When a 15 9 GPHP physician injures a consumer, of free will chose a culpable course of dant hospital in Darling had. the GPHP intensifies that consumer’s conduct and therefore is morally to Whether one espouses the personal care in an attempt to correct the blame.1 52 moral objective and fault principle of consequences of the malpractice. 146 Unfortunately, the fault system liability or the social moral objective Furthermore, any policy which largely lacks this moral justifi­ and social insurance principle of liabil­ would redistribute loss to one who can cation.153 But this does not mean ity, the goal is the same — victim better afford it147 would tend to accident law should abandon a moral compensation. This objective will best force the GPHP to become responsible objective, nor that the fault basis of be served by GPHP liability. Tort for its consumers’ care. Even if it liability should be perpetuated with­ doctrine stressing personal moral ob­ should be found true that a GPHP out regard to morals. Other and jectives would suggest that the GPHP cannot yet realistically control the use broader social moral considerations should be responsible for its institu­ of individual physicians, the plan indicate the need for an entirely dif­ tional actions. If the moral objective is liability becomes a legitimate business ferent system of liability that wisely Continued on page 61

6 0 THE JOURNAL OF FAMILY PRACTICE, VOL. 4, NO. 1, 1977 Continued from page 60 an integral and positive part of the social, GPHP liability promotes equit­ health-care delivery system. able distribution of accident losses as a References 1. See eg, W. Curran & G. Moseley, The Changing cost of health care provision. Each The Medical Malpractice Experience of consumer, including the victim, shares Health Maintenance Organizations and Foundations for Medical Care: Final Report Seasons equally through increased GPHP fees. (prepared for National Center for Health It would, of course, be folly to Services Research and Development, Dept, of H.E.W. 1973); summarized in Curran & impose liability on GPHPs if that Moseley, The Malpractice Experience of of Life— imposition substantially discouraged Health Maintenance Organizations, 70N.W.U.L. Rev. 69 (1975) their desirable activities. But GPHP 2. See eg, Darling v Charleston Com­ A CONTINUING MEDICAL m unity Memorial Hosp., 50 III. App.2d 253, liability will not discourage the forma­ 200 N.E.2d 149 (1964) aff'd, 33 III.2d 326, EDUCATION INSTITUTE tion or full functioning of GPHPs. 211 N.E.2d 253 (1965), cert, denied, 383 2100 19TH STREET N.W., U.S. 946 (1966) They can and do carry malpractice 3. Cases and commentary dealing WASHINGTON, D.C. 20009 insurance. They can and do obtain with the problem discussed are scarce. Possi­ (202) 232-3866 ble reasons for this are the relative newness indemnification from others. Extend­ of GPHPs and plaintiffs' usual success in ing malpractice liability from physi­ collecting damages from alternative sources COURSE TITLE such as physicians, medical groups and THE CHANGING SEASONS OF LIFE: cians, hospitals and medical groups to hospitals THE PHYSICIAN’S ROLE 4. The term "group prepaid health GPHPs will not necessarily increase the plan" is used here instead of the more size of jury verdicts, but it will spread common term, "Health Maintenance Organi­ SPONSORS or shift the liability burden.160 zation" (HMO), for several reasons. The Sea and Shore Seminars, Washington, federal Health Maintenance Organization D.C. GPHP liability will not dispropor­ Act of 1973 (42 U.S.C. §§ 300e-300e-14a definition of HMOs now excludes most The Charles R. Drew Postgraduate tionately burden GPHPs, but will re­ established GPHPs because they do not Medical School Office of Continuing comply with the extensive requirements of move the undue burden from victims the Act. Furthermore, the Act potentially Education and spread it over all the GPHP’s includes Foundations for Medical Care, The University of Cincinnati, College structures which this paper does not ex­ consumers. It bears repeating that, to amine. Additionally, HMO in common usage of Medicine, The Office of Continuing assure proper allocation of limited has been generic and not a definitive term. Medical Education resources in a free society, an enter­ A specific HMO may have relationships and contract obligations which result in ques­ DATES prise must pay its own accident costs. tions of liability which are not of concern at all to other models of HMOs. See Aspen April 23-30th, 1977 Finally, GPHP liability may take Systems Corp. Health Law Center, Digest of the pressure off individual physicians State Laws Affecting the Prepayment of SITE Medical Care, Group Practice and HMOs, at S.S. Rotterdam—New York—Nassau— to practice “defensive medicine” and 182-84 (App. F: 1972) 5. See generally W. Curran & G. Bermuda alleviate the growing medical malprac­ Moseley, supra note 1 tice crisis. 6. See Beeck v Tucson General Hosp., ACCREDITATION 18 Ariz. App. 165,500 P.2d 1153 (1972); Conclusion Wells v Southern California Permanente This course is acceptable for 25 credit GPHPs were created to provide Medical Group, No. SEC6787 (Cal.Super.Ct., hours in Category I for the Physician’s Los Angeles Co., Aug. 22, 1973); Larson v Recognition Award, American Medical better health care at a lower cost. As Kaiser Foundation Hosps., No. 43238 (Cal. Association. Super. Ct., Santa Clara Co., April 9, 1973), GPHPs assume this role over time, as noted in 28 Citation 19 (Nov. 1, 1973); This course is acceptable for 25 pre­ they will move concurrently toward Bye v Group Health Plan, Inc., File No. scribed hours of instruction by the 684091, Calendar No. 84165 (4th Div. Dist. institutional liability. As health care is Ct., Hennepin Co., Minn., March 12, 1974); American Academy of Family Physi­ institutionalized, so liability is institu­ Fiorentino v Wenger, 19 N.Y.2d 407, 227 cians. N.E.2d 296 (1967); Bing v Thunig, 2 tionalized. The GPHPs now in exis­ N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 REGISTRATION (1957); Giuste v C. H. Weston Co., 165 Or. tence realize this fact, and many are 525, 108 P.2d 1010 (1941); 18 Okla. L. $175.00 (after February 23, 1977, beginning to deal with it. They are Rey. 77 (1965); and see the cases cited in $ 200.00 ) obtaining insurance or becoming self- Annot., 69 A.L.R.2d 305 (1960) 7. See sections of this paper discus­ INFORMATION insuring, providing voluntary or bind­ sing structure and function of the GPHP, infra, at notes 71-160. Additional professional areas for which ing arbitration, or just settling with 8. C. Steinwald, An Introduction to accreditation will be available will be aggrieved consumers. Others are also Foundations for Medical Care (Blue Cross sent on request from: Association, 1971) attempting to provide for GPHP liabil­ 9. Hereinafter, "GPHP" will refer Sea and Shore Seminars ity. New compensation and quality only to this model 2100 19th Street N.W., No. 601 10. W. Curran & G. Moseley,1 Study Washington, D.C. 20009 control systems are being discussed on Legal Issues in the Reorganization of Health-Care Institutions 30 (1974) 202-232-3866 seriously. There are institutional no­ 11. W. Curran & G. Moseley, supra fault liability systems, such as vicar­ note 1, at 10; O. Schroeder, Jr., The Law Medicine Letter, 51 Postgraduate Medicine, ious liability161 and strict lia­ 53, (April 1972); Medical Group Manage­ ment Ass'n Manual on Insurance, 65, 66, bility.162 Variant arbitration systems 83-91 (1974); see also Jordan v Group are also being proposed and tested.163 Health Ass'n, 107 F .2d 239 (D.C. Cir. 1939) Assuming that GPHPs will grow, in which the court held GHA not subject to **This seminar has been planned by Washington, D.C.'s insurance laws because educators and medical experts with GPHP liability will be expected by the plan provided services and did not just indemnify and therefore is not an insuror academic experience. It focuses on consumers and should be accepted by 12. Bing v Thunig, 2 N.Y.2d 656, 163 cardiovascular, hypertensive and en- administrators and physicians. It N.Y.S.2d 3, 143 N.E.2d 3 (1957); Darling v docrinologic disorders followed through Charleston Community Memorial Hosp., 50 a life span continuum, prenatal through should not be viewed as punishment, III. App.2d 253, 200 N.E.2d 149 (1964), but as an equitable social tool. If aff'd, 33 III.2d 326, 21 1 N.E.2d 253 (1965), geriatric years presented from the view­ cert, denied, 383 U.S. 946 (1966); South- point of the primary care provider. liability is viewed this way, abuses may wick, The Hospital as an Institution — be corrected, and liability may become Continued on page 62

THE JOURNAL OF FAMILY PRACTICE, VOL. 4, NO. 1, 1977 61 Continued from page 61 (1 96 6 ) Expanding Responsibilities Change its Rela­ 40. See text accompanying note 3, DRIXORAL tionship with the Staff Physician. 9 Calif. W. supra brand of dexbrompheniramine maleate, NF L. Rev. 429 (1973) 41. Southwick, The Law of Hospital and d-isoephedrine sulfate 13. W. Curran & G. Moseley, supra Liability, Legal Medicine Annual at 91 Sustained-Action Tablets n ote 1, at iv (1 97 0 ) 14. Id, at 6-9 42. 120 Mass. 432 (1876). See the Clinical Considerations: 15. See id. at 6, 7; Hansen, Group discussion of McDonald's misconceived pre­ Health Plans: A Twenty-Year Legal Review cedential underpinnings in Pierce v Yakima Indications: DRIXORAL Sus­ 42 Minn. L. Rev. 527, 528 (1958) Val. Mem. Hosp. Ass'n., 43 Wash.2d 162, tained-Action Tablets are indicated for 16. W. Curran & G. Moseley, supra 167, 260 P.2d 765, 768 (1953); see also note 1, at 8, 156; Ellwood, Jr. Implications Bing v Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d the relief of symptoms of upper respi­ of Recent Health Legislation. Am. J. Pub. 3, 143 N .E .2d 3, 5 (1 95 7 ) ratory mucosal congestion in seasonal H. (Jan. 1972) 43. Bing v Thunig, 2 N.Y.2d 656, 163 17. W. Curran & G. Moseley, supra N.Y.S.2d, 3, 143 N.E.2d 3 (1957) and perennial nasal allergies, acute note 1, at 156 44. For cases distinguishing "medical" 18. Health Services and and "administrative" acts, see, Annot., 69 rhinitis, rhinosinusitis and eustachian Ad., U.S. Dep't of H.E.W., Health Main­ A .L .R .2d 3 0 5 , 3 1 7 -2 0 (1 9 6 0 ); see eg, S chlo- tube blockage. Contraindications: tenance Organizations — The Basic Facts endorff v Society of New York Hosp., 211 (p re-1 9 7 1) N.Y. 125, 105 N.E. 92 (1914), rev'd on DRIXORAL should not be given to 19. Havighurst, Health Maintenance other grounds; Bing v Thunig, 2 N.Y.2d children under 12 years of age. Organizations and the Market for Health 656, 163 N.Y.S.2d 3, 143 N.E.2d 3, 5 Services. 35 Law & Contemp. Prob. 716, (1 95 7 ) DRIXORAL should not be adminis­ 794 (1971); Hansen, supra note 15 45. Commonly, this involved breaching 20. Health Services and Mental Health of a duty of care in the selection of tered to pregnant women or nursing Ad., U.S. Dep't. of H.E.W., Health Main­ employees, and more recently, non­ mothers, until the safety of this prepa­ tenance Organizations, The Concept and employee staff physicians; for cases and Structure (1971); Health Services Mental further discussion, see Southwick, The Hos­ ration for use during gestation and Health Ad., supra note 18 pital's New Responsibility. 17 Clev.-Mar. L. lactation is established. DRIXORAL 21. See Tierney. Contractual Aspects Rev. 146, 151 (1958); Annot., note 26, at of Malpractice. 19 Wayne L. Rev. 1457, 985-87; Annot. 25 A.L.R.2d 29, 112-125 is contraindicated in patients with 1459 (1973) (1952); and see text at notes 26-37 for cases 22. See eg, Calvin v Thayer, 150 Cal.2d and further discussion of a hospital's duty severe hypertension and coronary 610, 310 P.2d 59 (1957); Mirach v Balsin- of care in the selection of physicians artery disease. W arnings: As in the ger, 53 Cal. App.2d 103, 127, p.2d 639 46. See Annot. 25 A.L.R.2d 29 (1942); Benson v Mays, 245 Md. 632, 227 (1952), for cases and further discussion of case of other preparations containing A.2d 220 (1967); Roybal v White, 72 N.M. these exceptions central nervous system-acting drugs, 285, 383 P.2d 250 (1963) 47. Bing v Thunig, 2 N.Y.2d 656, 163 23. Wills v Regan, 58 Wise.2d 328, 206 N.Y.S.2d 3, 143 N.E.2d 3 (1957) patients receiving DRIXORAL should N.W.2d 398 (1973); see also Lane v Boi- 48. Id. 143 N.E. 2d at 7 court, 128 Ind. 420, 27 N.E. 1111 (1891) 49. Id. 143 N.E.2d at 6 be cautioned about possible additive 24. For discussion of why a GPHP is a 50. Southwick, supra note 12, at 465 effects with alcohol and other central provider of actual health care and not just a 5 1. Id. at 4 4 3 ; see also D arlin g v financing and contracting agent, see text Charleston Community Memorial Hosp., 33 nervous system depressants, such as accompanying notes 10-20, supra III.2d 326, 211 N.E.2d 253 (1965), cert, hypnotics, sedatives and tranquilizers. 25. Another problem is that the courts denied 383 U.S. 946 (1966); Gilstrap v convert breach of contract causes into tort Osteopathic Sanitorium Co., 224 Mo. App. Patients receiving DRIXORAL should actions, a problem common to cases against 798, 24 S.W.2d 249 (1929); Feezer, The also be cautioned against hazardous all types of medical care providers Tort Liability of Charities, 77 U. Pa. L. Rev. 26. See eg, Joiner v Mitchell County 191 (1928); for further discussion of hospi­ occupations requiring complete Hosp. Auth., 125 Ga. App. 1, 186 S.E.2d tal vicarious liability, see Southwick, Vicar­ 307 (1971), aff'd. 229 Ga. 140, 189S.E.2d ious Liability of Hospitals. 44 Marq. L. Rev. mental alertness, such as operating 412; and see cases and discussion Annot., 51 153 (1 9 6 0 ) machinery or driving a motor vehicle. A.L.R.3d 981 (1973) 52. See Pogue v Hospital Authority of 2 7. Id. DeKalb County, 120 Ga. App. 230, 170 Precautions: Preparations contain­ 28. Id. at 983-84, 989-90; Annot., 13 S.E.2d 53, 54 (1969), where the court held, ing isoephedrine should be used A.L.R.2d 11 (1950); See 40 U. Cin. L. Rev. "A hospital is not liable for the negligence 797 (1971); Southwick, supra note 12, at of a physician employed by it where the cautiously in patients with the follow­ 461 -6 5 negligence relates to a matter of professional 29. See Annot., supra note 26, at 984, judgment on the part of the physician when ing conditions. hypertension; coronan/ 987 -8 9 the hospital does not exercise and has no artery disease or any other cardio­ 30. See Holder, Negligent Selection of right to exercise control in the diagnosis or Hospital Staff, 223 J.A.M.A. 833 (1973) treatment of illness or injury" vascular disease; glaucoma; prostatic 31. See eg, Ozan Lumber Co. v Mc- 53. Galen (A.D. 130-200?) complained hypertrophy; hyperthyroidism; dia­ Neely, 214 Ark, 657, 217 S.W.2d 341 of the lack of quality control of Roman (1949); and see cases and discussion Annot., physicians during the Empire and the pub­ betes. A dverse R eaction s: The 8 A.L.R.2d 267 (1949) lic's tolerance of the ignorance of lazy 32. In Glavin v Rhode Island Hosp., 12 healers ". . . who flatter their whims." physician should be alert to the possi­ R.l. 411 (1879), a negligent selection of Quoted in Caldwell, Early Legislation Regu­ bility of any of the adverse reactions physician case, the court required a corpora­ lating the Practice of Medicine. 18 III. L. tion created for purposes which could not Rev. 225, 226 (1923). In the American which have been observed with sym­ be accomplished without the exercise of colonies Virginia enacted a bitterly con­ pathomimetic and antihistaminic special care and skill to exercise the re­ tested medical practice act to improve the quisite care and skill; Shapiro v Health quality of medical care in 1639; see general­ drugs. These include: drowsiness; Insurance Plan, 7 N.Y.2d 56, 194 N.Y.S.2d ly R. Morris & A. Moritz, Doctor and confusion; restlessness; nausea; 509, 163 N.E.2d 333 (1959) held that a Patient and the Law, (5th ed., 1971) GPHP has the right to select and reject 54. See Bergen, The Darling Case, 206 vomiting; drug rash; vertigo; palpita­ physicians employed by a medical group J.A.M.A. 1665 (1968) that is under contract with the GPHP to 55. Southwick, supra note 12, at tion; anorexia; dizziness; dysuria due provide services 430-36, 466 to vesicle sphincter spasm; headache; 33. See W. Curran & G. Moseley, supra 56. Id n ote 1, a t 22 57. Id, at 431 ; anxiety; tension; weakness; 34. GPHP liability for physician selec­ 58. Id, at 430; Southwick, supra note tachycardia; angina; sweating; blood tion would not preclude existing hospital 4 5 , a t 146 liabilities; For cases and discussion of these 59. Id pressure elevation; mydriasis; gastric points, see text at notes 91-125, infra 60. Id, at 155-56; Klema v St. Eliza­ 35. 125 Ga. App. 1, 186 S.E.2d 307 beth's Hospital, 170 Ohio St. 519, 166 distress; abdominal cramps; central (1971) , aff'd 229 Ga. 140, 189 S.E.2d 412 N.E.2d 765 (1960) nervous system stimulation; circu­ (1 97 2 ) 61. Darling v Charleston Community 36. See also text at notes 109-120 Memorial Hosp., 33 III.2d 326, 211 N.E.2d latory collapse. 37. For discussion of the invalidity of 253 (1965), cert, denied, 383 U.S. 946 015 AUGUST 1973! this argument, see text at notes 10-25 and (1966) For more complete details, 71-1 3 2 62. Walkup & Kelly, Hospital Lia­ 38. Excepting perhaps vicarious liabil­ bility: Changing Patterns of Responsibility, consult package insert or ity, which is not discussed here because 8 U. San Fran. L. Rev. 247, 254-57 (1973); Schering literature available discussed at note 6 see also A n n o t., 14 A .I.R .3 d 873 (1 967) 39. Darling v Charleston Community 63. Bing v Thunig, 2 N.Y.2d 656, 163 from your Schering Repre­ Memorial Hosp., 33 III.2d 326, 211 N.E.2d 253 (1965), cert, denied, 383 U.S. 946 Continued on page 72 sentative or Professional Services Department, Scherinc Corporation, Kenilworth, 62 New Jersey 07033. s l s *