Medical Malpractice and Medical : The Case for Medical Malpractice Litigation by Barry R. Furrow, J .D.

D iscussions of medical malprac- studies, in the NEWENGLAND JOUR- curious one, following the authors’ tice seem to end up at either of two NAL OF ,focused upon surgi- premises: (1) many severe iatrogenic extremes: the trial lawyer’s view that cal mishaps in one case3 and iatro- events occur, (2) due primarily to injured deserve compensa- genic illness in a general medical judgmental error, (3) which tion, with the treating physician the service at a university hospital in could be minimized by better best source; and the doctor’s view that the ~econd.~ data collection and discussion, (4) ex- such suits unfairly penalize judgmental The first study, surveying avoidable cept for the effect of malpractice liti- errors while raising the costs of prac- adverse outcomes from colonic sur- gation in stifling said reforms, even ticing medicine. The parties to this gery, concluded that “[tlhe penalties though (5) none of the examples debate make different assumptions for such misadventures turned out to which the authors cite involve negli- about the nature, purpose, and likely be severe, with 10 times the mortality, gence. It is as though a mandatory impact of malpractice suits; as a result, seven times the average cost, and four swipe at malpractice litigation is the issues are muddied rather than times the length of hospitalization necessary to top off the study. clarified. This article suggests that, expected in average patients under- viewed in light of recent studies of iat- going comparable but uncomplicated In light of recent studies of iat. rogenic illness in hospital settings, colonic surgical procedures.”s Of 56 rogenic illness in the hospital malpractice litigation may help rather types of errors which occurred, 31 setting, malpractice litigation than hinder the quality of medical were “those of unnecessary, contra- may help rather than hinder care delivered. indicated, or technically defective sur- the quality of medical care latrogenesis, defined as the undesir- gical activity.’I6 Other sources of the delivered. able side-effects of medical interven- medical “errors” were identified by the tions, is not a new phenomenon. The authors, admittedly in an impres- major study undertaken by the De- sionistic fashion, as misplaced op The second study, of general medi- partment of Health, Education and timism, a sense of unwarranted cal services at a university hospital, Welfare in 1973 noted that a substan- urgency, the urge for perfection, and monitored 815 patients during a five- tial percentage of adverse medical out- the use of vogue : all errors of month period in 1979.1° Of these, 290 comes occur as the result of treat- commission. From a legal standpoint, (36 percent) had one or more iat- ment.’ Others have concluded that according to the authors, “none ap rogenic illnesses, 76 (9 percent) had many surgical are avoidable.* pears to have involved negligence.”’ major complications, and of the 15 Two recent studies have added fuel to The authors were concerned about who died (2 percent of all patients the smoldering controversy over the their findings, and proposed that a and more than 5 percent of those with nature and extent of such medical legal safeguard was needed against complications), iatrogenic illness mishaps, drawing attention to a range malpractice suits for errors in judg- was believed to be a contributing of medical errors and raising again the ment, i.e., “error simply related to cause. The intervention categories question of the tort system’s relation- flawed reasoning” as opposed to negli- were drugs, diagnostic and therapeutic ship with . The two gence.s Malpractice suits only suc- procedures, and miscellaneous others. ceed, according to the authors, in The authors’ overall conclusion was Mr. Furrow isvisiting Professor of Law driving into concealment the “forces that “the risk incurred during hospitali- at the University ofMichigan Law School that could help to reveal and control zation is not trivial” and that “the risk in Ann Arbor, Michigan, and Professor epidemiologic sources of error.”9 of a serious problem may well have of Law (on kawe) at Washingron Colkge The culprit of the study is made out increased” in the last 20 years. * 1 ofLaw, American University in Washing- to be the tort system, with fear of liti- Causes mentioned included routine ton, D. C. Mr. Furrow is also a newly gation blocking broader disclosure of of a range of physiologic appointed Associate Editor O~LAWMED. hazards, better studies, and open dis- characteristics, often leading to ear- JUNE B HEALTHCARE in charge ofthe cussion. The asserted link between lier interventions than might have column on Medical Malpractice. medical error and malpractice is a occurred in the past; use of a wide range

4 Law, Medicine 8 of potent drugs; and therapeutic proce- professional standards. Negligence current malpractice doctrine. dures in general. The authors made provides the usual basis for a malprac- Errors based upon professional no judgment as to negligence and iatro- tice action. It is defined as unskillful shortcomings. Deficiencies within a genesis. As in the first study, however, practice causing to the , medical specialty may cause iatrogenic these authors issued a clarion call for as a result of a failure to exercise the harm. These may include problems better mechanisms “to assess the haz, “reasonable degree of skill, knowledge, of scientific ignorance, inadequate ards of hospitalization in an ongoing and care”15 appropriate under the evaluation of diagnostic instruments manner,”’* for an intensified search circumstances. The reasons for a physi- and procedures before use, or failures for means to reduce the frequency and cian’s failure to follow an accepted to educate members. A medical spe- severity of iatrogenic events, and for standard can be many: inattentiveness cialty may be in its infancy, so that a shared concern for deficiencies in on a particular occasion, even though knowledge about etiologies of illness medical review within the hospital. he is a skillful. well-trained doctor; and techniques of treatment is incom- a systematic failure of training, in plete. Those therapeutic techniques Medical Error and Culpability which a physician has not kept up with which are available may not yet have The level of patient harm demon- his field; or a personal inability of the been sufficiently perfected to eliminate strated by these recent studies raises physician to deal with this particular substantial risks of side effects. l6 the question of the interface of mal- problem by, for example, operating Although injury to a patient may be practice litigation with risk reduction, outside his sphere of competence. caused by the shortcomings of a par- a relationship which the studies as- Even though the particular physician ticular therapist in a given case, it is sumed was either detrimental or too not the individual’s failure, but rather insignificant to mention. However, a Discussions of rofessional rep that of the profession as a whole which sophisticated view of tort litigation lation tend to gwnplay the role can fairly be said to have caused in- suggests that it may be a valuable ad- of malpractice litigation, pore jury. We are therefore troubled, at junct to other professional reforms and traying it as useful only for the least initially, by singling out the indi- in fact can be a central force in pro- sanction of gross violations of vidual physician for liability. It is re- moting change. A brief summation of professional norms. In fact, such ally a form of vicarious liability we are the kinds of medical error raised in litigation should be viewed as a imposing, in which the profession is these studies reveals suggestive form of “microregulation” of collectively at fault, but a particular connections between error and undesirable practices. therapist is being penalized for collec- culpability. tive shortcomings. The causes cited by Tort rules have traditionally at- the studies suggest that errors in this tempted to render the plaintiff whole has considered the consequences of category (e.g., vogue therapies, multi- by forcing a defendant to pay compen- treatment and has exercised his best ple drug administration) account for a sation, with the justification that the judgment, his conduct is still measured significant percentage of the iatrogenic defendant can fairly be taxed because by an external standard of the reason- harms suffered.” of his “fault” in injuring the plaintiff. able practitioner in his position. Errors related to work setting. The Two categories of “fault” are normally The legal system has deemed it fair context of both studies, discussed included within the category of mal- to hold a physician accountable for above, the modern hospital, provides practice: intentional harmful acts and these two categories of medical errors a fourth set of medical errors. While negligent acts. in a malpractice suit. They imply that solo practice has long been the ideal in Willful harmful acts. Intentional the physician has failed to conduct medical practice, ’ need for torts include a knowing deviation, himself at that level of practice which a hospital connection has created the without good cause, from the profes- his professional membership indicates present form of practice, which is col- sional or ethical norms of practice for he should have achieved, and which legial, operating within hospitals and the profession or from recognized pro- he presumably could have achieved, group practices. By 1975, no physician cedures and techniques for treatment. with diligence. In these two categories would consider practicing without the The roots of the of error, the focus is upon the indi- resources that hospital affiliation doctrine can be traced to the inten- vidual practitioner and his deviation, brought, and one in four of the tional tort of battery, for example, ac- whether intentional or negligent, from 530,000 active physicians practiced knowledging the connection between a norm. The types of error likely to be full-time in a hospita1.l” In that same a surgical “touching” and the knowing detected are those of the unethical or year, over 18 percent of all active withholding of information from the slipshod doctor. who is probably a physicians practiced in groups of three patient.” Also in this category are cause of a small, although significant, or more.i9 Almost 80 percent of the cases of excessive , such as the percentage of harm. The types of med- incidents that lead to malpractice infamous case of Dr. Nork, who per- ical errors revealed by the studies dis- claims occur in hospitals, reflecting formed countless surgical procedures cussed above, however, tend to fall the primacy of the hospital as the which he knew to be unnecessary and into neither of these categories, sug- locus of most medical practice.20 The which he also knew he was incompe- gesting that there are at least two work setting of the hospital provides a tent to perform.I4 further categories of medical error, context in which “persistent and pow- Negligent acts, as measured by and their existence tests the limits of erful demands cause the individual to

October 1981 5 behave in a certain way regardless of jurisdictions, since courts are normally medical services are complex his personal qualities.”21These de- reluctant to set their own standards of and infrequently bought. The mands can lead to peer pressure care in place of those established by medical care market gives the against questioning a colleague’s the profession, especially in complex purchaser little assistance in judgment or informing on his errors. cases. However, courts should be more enabling the purchaser to evalu- Alternatively, the incentive structure willing to take a hard look at the cus- ate what he or she is buying. It is can be changed in directions which tomary practice where a plaintiff can generally the physician - not tend to uncover errors.** produce some evidence that the prac- the patient - who determines Discussions of professional regula- tice is out-of-date or ineffective and the kind of services to be ren- tion tend to downplay the role of thereby dangerous. dered and how often . . . . The malpractice litigation, portraying it as Cases falling into the latter two physician is in a better position useful only for the sanction of gross categories of medical errors have been than the patient to determine violations of professional norms. In more troublesome to courts attempting and improve the quality of the fact, such litigation should be viewed to make tort law responsive to changes services, and the patient’s re- as a form of “microregulation” of un- in medical practice. Judicial expansion liance on the doctor’s skill, care desirable practices. The legal system of malpractice liability, making physi- and reputatian is perhaps greater essentially acts as a form of control cians accountable for a range of medi- than the reliance of the con- over activities that cause . It cal errors, has run counter to legisla- sumer of goods.32 holds those involved in an activity ac- tive reforms in the malpractice area. countable for staying informed about Over the past decade, state legislatures InJohnson v. Sears, Roebuck B progress in a field, and judges the responding to the “malpractice crisis” Company, 33 a federal district court standards by which the activity is per- have abrogated or restricted the opera- held strict liability to be a permissible formed. In malpractice cases, the tion of legal doctrines from res ipsa theory of recovery for defects in customary practice of the profession loquitur to informed consent.26 But mechanical and administrative ser- generally determines the standard of judicial recognition of the centrality of vices in hospitals. This court assumed, care against which an individual’s be- the hospital setting has marked several without deciding, that strict liability havior will be judged. The medical recent landmark cases. Thus, hospitals would “not apply to professional medi- profession has the privilege of setting have been subjected to an expansion cal services by But it rea- its own standard of conduct, by merely of the respondeat superior doctrine soned that such an exemption should adopting and acknowledging its own and held responsible for the alleged treatment practices.23 negligence of physicians practicing There is a trend toward linking The justification for this has been within them, even when the physi- tort liability with the predictabd- courts’ perceived lack of expertise in cians were independent contra~tors.~’ ity of harmful results and the judging another profession, and their An alternative theory of “corporate ability to discover and prevent fear of imposing liability based upon negligence” has been based on the them. Expanded liability pro- an uninformed judgment. Where the premise that a hospital owes its pa- vides a substantial incentive to customary practice of the profession tients a duty to exercise ordinary care providers to improve risk man- has been inadequate, dangerous, or in supervising its staff.** agement programs or to face the out-of-date, the plaintiff has lacked a A movement toward strict liability bad publicity and increased in- doctrinal basis for attacking the stan- for hospital services, analogous to that surance premiums which litigas dard itself. On rare occasions, courts which exists for some products, may tion brings. have recognized that a customary med- also be developing. Some hospitals ical practice may be negligent. Thus, have been held liable for harm caused in Helling v. Carey, 24 the Washington by medical instruments used in treat- not apply to “those services which Supreme Court held that the defen- ing ~atients.2~Courts have usually dis- hospitals perform for both doctors and dant ophthalmologists were negligent tinguished the rendition of profes- patients,” because of the “public us a matter of law in failing to adminis- sional services from the sale of interest” in having these services ter a simple glaucoma test, despite un- goods.30 In recent cases, however, “performed pr~perly.”~’ contradicted expert testimony that it courts have begun to examine the The Illinois Supreme Court has was universal practice not to so test basis for strict liability in the medical held that a hospital may be found patients under the age of 40. context. In Hoven u. Kelble, the Sup- strictly liable for the quality of blood Helling, and a minority of other reme Court of Wisconsin, while reject- which it provides for transfusion.36 cases,25have involved a or ing strict liability for medical services, Similarly, a Florida appellate court diagnostic procedure which was noted the similarity between consum- held that a supplier of blood for trans- readily understandable by lay persons. ers purchasing products and consumers fusion could be held liable for resulting This has allowed the trier of fact to seeking medical care: harm unless it could be factually de- weigh - without expert testimony - termined that impurities in the blood the relative risk of injury caused by the The typical purchaser of medical could not be detected or pre~ented.~’ procedure and by its omission. These services cannot evaluate the These cases represent a trend to- cases have not been followed by most quality of care offered because ward linking tort liability with the

6 Law, Medicine 61 Henlth Care predictability of harmful results and the ability of the profession to alter substantial, but that the medical pro- the ability to discover and prevent the level of risk, which it is able to fession still seeks to avoid linking cul- them. Courts are coming to recognize predict .4 I pability with medical error. Nor is it that hospitals are in the best position In each case, the test for foreseeabil- uncommon to blame the legal system to monitor iatrogenic effects traceable ity will be derived from the increased for medicine’sown tardiness in imple- to their own services, and that ex- predictive powers of modern medi- menting effective monitoring of iat- panded liability provides a substantial cine, through its new technologies and rogenic harms. Malpractice suits may incentive to providers to improve risk the use of statistics. As institutions be the best source of regulation cur- management programs or to face the come to know more precisely the ex- rently available for iatrogenic out- bad publicity and increased insurance tent of the risks associated with their comes in the health care system. premiums which litigation brings. Ex- activities, the ascription of responsibil- Proposals to reform the medical mal- panded liability may therefore create a ity and culpability becomes possible practice system will be inadequate if generalized pressure to alter the work and fair.‘* Even if a medical provider they ignore this primary need to deter setting in favor of better recordkeep- cannot predict the whole range of risks bad medical practices.44 ing, more frequent conferences on ad- associated with his services, he is in a The medical establishment needs verse outcomes, more consultations, better position, compared to the pa- to be made more aware of the risks it and evaluation of procedures not only tient, to detect and correct as many as creates. Accordingly, future reforms for cost, but also for iatrogenic impact. possible. It is a question of the relative must note the real problems of medical Other malpractice law develop advantage of the parties. Judicial ex- error and the incentives for correction ments may also result in alteration of pansion of liability, whether through provided by malpractice litigation. professional attitudes and practices. the application of the doctrine of strict Any “no fault” system or national The doctrine of informed consent, liability, res ipsa loquitur, or informed health insurance plan, if it seeks to while still bitterly resisted by parts of consent, assumes that the physician reduce medical malpractice and ensu- the medical profession,3*has had controls his own acts. It further as- ing litigation, must also provide an al- some impact on medical disclosure sumes that the physician has some ternative means of detering iatrogenic practices, resulting in more clearly ar- power to diminish the risk to patients, outcomes. ticulated disclosures by physicians of either by his own initiative or by ag- hazards and a1ternati~es.I~Legal rules, gregating resources with other mem- References if they are seen as technical and there- bers of the profession. 1. Pocincki. L.S., Dogger. S.J., Schwartz, fore only mechanically applied, are of Tort law, crude and arbitrary as it B.P.. The Incidence of latrogm Injurws. in DE. PARTMENT OF HEALTHEDUCATION AND WEL. little use, but when the values inher- may seem to some, has a role to play in FARE. APPENDIXREFORTOFTHE SECRETARY’S ent in such doctrines as informed con- exposing medical errors. The malprac- COMMISSION ON MEDICALMALPRACTICE sent become internalized, there will be tice suit can signal the need for change (DHEW Pub. No. (0s)73-89. U.S. Gov’t more changes and further reforms. PrintingOffce. Washington, D.C.) at 50. 51. in the habits of the individual prac- 2. A study, jointly sponsored by the Ameri- titioner or in the institutional prac- can College of Surgeons and the American Siir- Medical Errors and Predictability tices of the hospital. It may help to gical Asmiation. concluded that 796 of the The tort law concept of foreseeability expose the ethical renegades, the 1696 deaths or complications arising out of Dr. 1,493 surgical operations examined were avoid- of harm provides the core justification Norks; it may provide direct deterrent able. c.CHILD, THECRITICAL INCIDENT STUDY for a concept of medical culpability effects, through dollar judgments and OF SURGICALDEATHS AND COMPLICATIONS which can encompass all four cate- the psychic costs of involvement in 197301975 (1975). discussed in Study on Quality of Surgery Is Unueikd. MEDICALWORLD NEWS. gories of medical errors discussed litigation.‘] More importantly, litiga- pp. 24-25 (January26. 1976); see also Brdy. J., above. Foreseeability involves a pre- tion may articulate new duties, val- Incompetent Surgpy Is Found Nor Isolated, NEW diction, at a time prior to the occur- idating existing norms or promoting YORW TIMES.January 27. 1976. at I, col. 6. A srudy of the rate in Los Angeles County rence of an injury, of the type of injury the centrality of new ones. It may ar- during a doctors’work slowdown confirmed a that might result from a treatment ticulate new concepts of responsibility drop in the death rate, linked to the sharply error, of its severity, and of the prob- and require the medical specialities to reduced amount of elective surgery performed ability that such an injury will occur.4o re-examine their diagnostic procedures during the slowdown. See Death Rate in L.A. Feu in Sbwdown by Doctors, WASHINGTONPosr. The use of “foreseeability of harm” as and treatment modalities. It may, by October 20, 1978 at A6. ~01.5. the dominant test of a duty to prevent expanding the liability of institutions 3. Couch. N .P.,et al., The High Cost of injury requires the actor either to take which increasingly dominate health Lmu-Frequency Emtr. NEWENGLAND JOURNAL OFMEDlCINE 304(11):634-37 (March 12, precautions or to face liability, where care delivery, alter the work setting. 1981). harm is likely to occur and the victim Litigation has the advantage of not re- 4. Steel, K., et d , lanogenic IUness on a has neither consented to nor can avoid quiring a new piece of legislation or General Mcdicd Service at a Universrry Hospital, the harm. new administrative machinery to put NEWENGLAND JOURNALOF MEDICINE 304 (1 1): 638-42 (March 12, 1981). The focus of predictability of risk its reforms into operation. It can be 5. Couch. et d.,supra note 3, at 634. moves us from the individual within a triggered by a single plaintiff, and once 6. Id. at635. professional group to the capabilities its intervention is sought, a court must 7. Id. at 637. 8. Id. of the group itself, or to the institu- act on the case before it. 9. Id. rional setting, the hospital. Culpabil- The recent studies of iatrogenesis ity is linked to predictability and to suggest that the problem is real and Continued on page 41

October 1981 7 b) Staff Privileges c) Withholding Treatment Holder AR, Case Study: Can Am- Behrsin AJ, HousestuffStipends and the Cushing M, Treatment Beyond Death! niocentesis Be Performed Solely for Re- "Fellowship" Exclusion Under Section AMERICANl0URNALOF NURSING 81(8): search! IRB 3(6): 6-7 (JunelJuly 1981) 117 of The Jnternal Revenue Code, 1527-28 (August 1981) [9-7431. [9-7251. JOURNALOF COLLEGEAND UNIVERSITY LAW8(1): 131 (1981-82). Thrasher JE, McNicholas AJ, No- Levine RJ, Commentary: A Primary Code Orders, JOURNAL OFTHEFLORIDA Reviewer System, IRB 3(6):9-10 Feliu AG, Discharge of Professional MEDICALASSOCIATION 68(7): 487-88 (JunelJuly 1981) [9-7271. Employees: Protecting Against Dismissal (July 1981) [9-7751. for Acts Within a Professional Code of Petricciani J, Comparison of Regu- Ethics, COLUMBIAHUMAN RIGHTS LAW lations for IRBs and Informed Consent REVIEWll(2): 149-88 (Fall-Winter Human Experimentation Published by FDA on January 27,1981 1979-80). Ackerman TF, Moral Duties oflnues- and by HHS on January 26, 1981 (un- tigators ward Sick Chikiren, IRB 3(6): published manuscript) 21 pp. [9-7621. Exclusive Contracts and Hospital-Bared 1-5 (JunelJuly 1981) [9-7241. Physicians, TEXASMEDICINE 77( 7): Twoviews ofthe New Research Regu- 68-71 (July 1981) [9-1751. &hen JM,The Benefits of Professional lations: Veatch RM,Protecting Human Stafffor IRBs, IRB 3(6): 8-9 (June/]uly Subjects: The Federal Government Steps Medical Housestaff: Scholars or Working 1981) 19-7261. Back; Wigodsky HS, New Regulations, Stiffs? PACIFICLAW JOURNAL 12(4): New Responsibilities for Institutions, 1127-46(July 1981). HASTINGSCENTER REFORT 11(3): 9-14 (June 1981) [9-1841.

Medical Malpractice References Continued from page 7

10. Steel, et al., supra note 4. at 638. 24. HeUingu. Carey, 519P.2d981 (Wash. a1 , Informed Convnr - Why Are its GooL Imper- 11. Id. at641. 1974). fecrly Redzed? NEWENGLAND JOVWAL CIF MED 12. Id. 25. See, e.g.. Lundahtu. AockfordMem. Hasp. KINE 302116):896 (1980). But see Annas. C.J.. 13. Seegenerdy J. KING.THE~WOFMED1. Ass'n. 235 N.E.2d 671, 674 (111. App. 1968) EdrtomI. The Go& of Informed Consent. CAL MALPRACTICEIN A NUTSHELL(West Pub- ("what is usual or customary procedure might MEDICOLEGALN~~~8(3):13 (June 1980). lishing Co.. St. Paul) (1977) at 136. itself be negligence"). 40. See Judge Learned Hand's famous srate. 14. Conraks u. Nmk, No. 228566 (Calif. 26. Seegenerally Law, Polan,supra note 14, ment of the negligence calculus in United Stalps Super. Ct., Sacramento Gunty, November 19, ar97-119. u. CarrollTowing Co , 159 F.Zd 169 (2nd. Cir. 1973), forexcerpts. see S. LAW,S. POLAN.PAIN 27. Beeck u. Tucson General Hosp. 500 P.2d 1947) "[Tlherc can be no. . . general de, AND PROFITTHE POLITICS OF MALPRACTICE 1153 (Ariz. App. 1972). when we consider the grounds for liability . . . . (Harper & Row, New York) (1978) at 215-45. 28. Darhng u. Chorksron Community Mem. The . . duty . . . to provide against resulting 15. Bardessonou. Michels, 478 P.2d480.484 Hosp. 21 I N.E.2d 253 (Ill. 1965), cen. denied. injuries is a function ofthree variables: (I) The (Cal. 1970). 383 U.S. 946 (1966). probability (of harm]: (21 the gravity ofthe re- 16. See Gorovirz. S.. Maclntyre. A.. Toward 29. See 54 ALR 3d 258 for a list of cases. sulting injury. . . , (3) the burden ofadequare ofMedical a Theory FaUbiLty, HASTINGSCENTER 30. See 9. FURROW. MALPRACTICE IN precautions. Possibly it xrves to bnng this no- REPORT5(6):13 (December 1975). PSYCHOTHERAPY(1980) at 82. tion into relief to state it in algebraic terms. if 17. Couch,erd., supanote3, at636;SteeL 31. Hownu Kelbk, 256N.W.2d 379 (Wix. the probability be called P. the injury. L, and ec al., SU~Qnote 4, ar 639. 1977). the burden. R, liability depends on whether B 18. MEDICINEANDTHE REIGNOF S.J.RESIER. 32. Id. at 391 (footnoreomitred). is lessthan L multiplied by P: 1.e.. whether TECHNOLOCY(Cambridge University Press, 33. Johnsonu. Sears. Roebuckff Co., 355 F. B

October 1981 4 1