Unhealed Wounds: Medical Malpractice in the Twentieth Century (Law and Society)

Law and Society Recent Scholarship

Edited by Eric Rise

A Series from LFB Scholarly

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Unhealed Wounds Medical Malpractice in the Twentieth Century

Neal C. Hogan

LFB Scholarly Publishing LLC New York 2003

Copyright © 2003 by LFB Scholarly Publishing LLC All rights reserved. Library of Congress Cataloging-in-Publication Data Hogan, Neal C. Unhealed wounds : medical malpractice in the twentieth century / Neal C. Hogan. p. cm. -- (Law and society) Includes bibliographical references and index. ISBN 1-931202-42-7 (alk. paper) 1. Physicians--Malpractice--United States--History--20th century. I.Title. II. Law and society (New York, N.Y.) KF2905 .H64 2002 344.73'0411--dc21

2002010691

ISBN 1-931202-42-7 Printed on acid-free 250-year-life paper. Manufactured in the United States of America.

for my father

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Table of Contents Preface

xi The Significance of Malpractice

Chanpter 1: Jumpstarting the Twentieth Century

xii 1

•

Struggling to Define Error

1

•

Pike v. Honsinger

3

•

The Trial

6

•

Implications of the Case

28

•

Physicians Respond to Malpractice

29

•

Conclusion

31

Chapter 2: Building a Defense

33

•

Growing Awareness of Suits

33

•

Medical Societies offer Medical Defense

34

•

Private Malpractice Insurance

43

•

The X-Ray

52

•

Physician Advice Literature

68

•

Expert Witnesses

80

•

Expanding Hospital Liability

89

•

Hospital Bureaucracy

91

vii

viii

Table of Contents

Chapter 3: Expanding Physician Liability

97

Physician's Response

112

Chapter 4: Recognition of Conditions

129

Legal developments

141

•

•

Conclusion

157

Endnotes

161

Bibliography

193

Index

255

My many thanks: To the many researchers, librarians, and archivists without whose help none of this material could have been presented, but special thanks to Bill Gorman in the New York State Archives, and Barbara Berg in Widener Library. To my family: Elizabeth Doucette, the matriarch of our clan, whose shows a spirit so positive that I can only hope to emulate it. She generously supported me in my return to academics. My parents, who from an early age instilled in me a love of books and learning, and my siblings Nancy and Thomas who have been unswerving in their support and encouragement throughout. To all of my teachers, in particular to Donald Wilcox, who reawakened my interest in learning. To Everett Mendelsohn, Barbara Rosencrantz, and Donald Fleming who served on my generals committee. Special thanks to Shigehisa Kuriyama who incited my interest in the history of science, Brian Morgan who first allowed me to teach others, and to George Mangan who continues to teach me. To Mary Ellen Moore, without whose help I never would have even applied to graduate school. To Paul Hanson & Cynthia Rosenberger who were not only close friends but wonderful inspirations throughout my tenure at Harvard. To all of the students in all of my classes at Harvard, Tufts, Phillips Exeter and Iolani, in particular those who attended my Seminars in the History of Medical Malpractice in the 20th Century and suffered through my earliest thoughts on the subject. Finally, to those who advised me with greatest diligence (and thoughtfulness), Peter Buck and Alan Brandt, without whom this book would never have seen completion.

ix

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Preface Experience is fallacious and judgment difficult. Socrates At the opening of the twentieth century malpractice was an annoyance to only a small number of physicians. Though some medical societies offered insurance, and the occasional plaintiff won an award of more than a few hundred dollars, the average physician did not feel threatened by malpractice. Over the next 60 years this sense of comfort slowly eroded and by the 1960s even the general population spoke of “the malpractice crisis," prompting calls for tort reform, congressional hearings on physician liability, and newspaper articles about enormous jury awards against unscrupulous surgeons. Both the number and severity of malpractice lawsuits have increased dramatically over the course of this century, indicating shifts in conceptions of the doctor-patient relationship, changes in tort law, and re-negotiations of the meanings of negligence, error, and the standard of care. This book will explore the roots of malpractice law, the roles of local and national associations in the fight against malpractice, the effect of the introduction of new technologies within biomedicine, as well as problems arising between the continuity of care and the rise of specialization, changing patient expectations of biomedical science, and the rise of large, bureaucratic institutions for the delivery of health care.1 Malpractice does not change continuously over the century, but goes through distinct periods, each of which is characterized by particular plaintiffs, types of physicians, decisions in common law, and locations of care. A study of the rise of the malpractice lawsuit in the twentieth century does not merely yield a story of suits growing in number and deepening in severity. It also provides a framework for examining transformations in medicine, law, and society.

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xii

The Significance of Malpractice In nineteenth century civil actions for malpractice, plaintiffs often sought recourse for breach of contract, whereas in the twentieth century virtually all malpractice actions have been tortious actions predicated on the legal concept of negligence.2 In a contract dispute the patient argues that the doctor contracted to cure a specific ailment, and that given the absence of a cure, the patient is entitled to compensation. Under tort law a physician is held responsible for his negligence in performing a procedure if that negligence results in harm to the patient. During the 19th century, as actions shifted from contract disputes to tortious liability actions, courts formulated the concept that physicians must practice within the limits of the medical professions' consensus of the "standard of care." 3 In addition to proving that the physician failed in his duty to provide the standard of care, the plaintiff must also demonstrate that he suffered from an injury caused by this negligence. If the plaintiff is injured by a physician's procedure, but it is not clear that the physician was negligent, then there is no malpractice. If the physician is negligent but there is no injury resulting from the negligence, then there is no malpractice.

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This central tenet of malpractice has remained unchanged throughout the twentieth century, but virtually every other issue associated with malpractice has changed, from the nature of joint liability to physician's attitudes towards doctors serving as expert witnesses. The entire nature of tort law changes over the course of the century, as the courts expand the plaintiff's abilities to successfully sue for accidents, products liability and contributory negligence. Twentieth century decisions on medical liability are founded on the legal definition of the "standard of care." Chapter One presents a review of the New York State Court of Appeals landmark malpractice decision which defined the standard of care, and it is important to note that the Court's standard did not determine the quality of care that physicians must provide. Instead the Court placed the burden of determining the quality standard into the hands of physicians. Following the ruling, physicians would be called to the stand not to present facts, but to testify on their opinion of whether or not the defendant physician met the standard of care. The standard of care ruling did not set a firm quality standard, rather, it set forth a system for retrospectively determining the quality of a given physicians care. Prospectively no physician could know the legal standard of care. The quality standard put in place would be determined retrospectively, through the testimony of other physicians in the event of a malpractice suit. That care standard, set forth by the New York State Court of Appeals, also limited the ability of courts to address variations in care standards across communities. The Court ruled that physicians must practice up to the standard of care within their "locality." The court did not address variations in care from community to community. Over the course of the century, as the medical profession increased its power and status, no professional society ever chose to set care standards for the physicians in its locality, nor did any association attempt to address the problem of wide variations in care from community to community or state to state. In fact, physician defendants relied on those variations as a defense. Malpractice cases reveal a strong, quiet opposing current against the river of nationalization of medicine. While the American Medical Association, and the large number of specialist associations operated on a national level - with national board examinations, national journals

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xiv

and national memberships - the standard to which physicians were held were decidedly local. This strong local character of malpractice suits makes it difficult to tease out national issues, or trends. While the chapters that follow do point to trends almost every trend has a countervailing example. The issues are chosen because of their broad implications, or because they represent developments that were widely commented on in the medical or legal press. Chapter Two is a report on the growing awareness of suits by physicians during the first three decades of the century, and the recognition that a new technology - the x-ray - was having an effect on them. Physicians who sought to avoid suit took three courses of action. The medical societies organized medical defense strategies and provided counsel for all of their members. They hoped to crush all suits by denying any plaintiff an award, any attorney a fee. In addition, they mandated that physicians should not purchase insurance. Physicians, however, decided to take the second course of action and purchased their own insurance. Ultimately the societies, recognizing that their members were moving against their strategy, co-opted the insurance purchasing and purchased group insurance for their members. Physician leaders and the medical societies sought to teach physicians behavior which would help them to avoid suits. They were told to keep good records, avoid negative comments about other physicians, be wary of poor patients, and be aware of the law. The adoption of the x-ray appeared to change the standard of care in a locality, but it was adopted neither quickly nor uniformly. The most important effect of the x-ray was its ability to produce a film record of the patient encounter. For the first time an attending physician's diagnosis and treatment decisions could be retrospectively reviewed using the same evidence at hand. Chapter Three focuses on the expansion of liability that occurred following World War Two. Legal standards that had been developed to distinguish liability of charitable hospitals from that of all other acute care facilities were called into question. The rise of the hospital and the bureaucratization of care created new liability issues for physicians, hospitals, and the workers inside those hospitals, particularly nurses. States required the keeping of somewhat standardized hospital records. Finally the creation of workmen's compensation leads to a new focus on forms and reporting inside the hospital, and these forms (which often become important evidence in malpractice cases) are standardized

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within states. While physicians worked to avoid suits, a larger force was changing the malpractice picture: acute care, the origin of most suits, was moving into the hospital. Courts began to deal with new problems caused by corporate care. In addition the first form of widely available health insurance, workmen's compensation, changed the ways in which hospitals regarded patients and patient information. Chapter Three also includes a careful study of the development of a particular legal doctrine, res ipsa loquitur - "the thing speaks for itself" - places a spotlight on the confused and sometimes irrational ways in which the courts responded to physicians' reluctance to testify in suits, and to the fact that patients were now cared for by a staff of health workers. Chapter Four, which covers the 1960s, begins with a new public awareness of malpractice. While the first articles on malpractice, published in the 1950s, attempt to place the blame for suits on all parties, during the 1960s each malpractice story was turned against one of the parties: the doctor, the hospital, the patient, or the lawyer. Medical societies finally gave up trying to deny that negligence happened, and formed boards to review malpractice suits and recommend whether or not their insurers should settle the case. Courts dramatically changed many elements of the Pike decision. They effectively ended the locality rule, extended the statute of limitations, and took away the hospital's immunity from suit. They altered not only the standard of care, but also the doctor-patient relationship which ultimately mandated that patients must participate in all aspects of medical decision-making. Ultimately, the significant changes that occurred in malpractice are not the result of a standardization of care, but the result of a host of other factors - insurer demands, court sensibilities, and medical society politics. While clinical developments could cause a blip in the number and severity of suits, the significant changes in malpractice throughout the century result from legal, social, and political factors.

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Jumpstarting the Twentieth Century: The Pike v. Honsinger Decision

CHAPTER 1:

Struggling to Define Error Nineteenth century courts had recognized that a malpractice action is a tort, not a contract dispute. In the Pike v. Honsinger case the New York State Court of Appeals formally set the standard for judging medical liability. The court ruled that all physicians should be expected to practice at the "standard of care", and that standard would be determined by having local physicians testify as to the standard in the locality. This decision highlighted problems in the standardization of medicine. While ostensible reforms occurred around the opening of the twentieth century - the Flexner report, the consolidation of the AMA, and the dominance of osteopaths - the Pike standard did not make for homogeneity. The problem of defining the standard of care would become the central tension in malpractice law throughout the rest of the century. Nineteenth century medicine was heterogeneously practiced, locally focused, and largely unregulated. Physicians practiced medicine differently from one another, there were entire schools or sects of medicine which held radically different views not only of how the body should be treated, but of its actual function. The American Medical Association was formed in 1848, but few practitioners cared to apply for membership. By 1900 the AMA still attracted only 1 in 19 physicians in Massachusetts, and similar numbers in other states.4 Thomsonianism, homeopathy, and allopathy all had large numbers of adherents and practitioners. Throughout the nineteenth century the courts struggled with ways in which to handle the problem of practitioner error. Initially the courts had considered the doctor-patient relationship to be a contractual relation: the patient contracted with the doctor for a cure. Courts slowly 1

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modified their position. Certainly a patient went to a physician to be cured of an ailment, but responsibility for the failure to cure could not rest solely with the physician. The courts eventually determined that only if a physician guaranteed a cure could he be held liable for breech of contract. By defining malpractice as a tort the courts recognized that the physician could not guarantee a cure. Under tort law the physician would be liable only if some error or negligence on his part injured the patient. This created an unanticipated problem for the courts: How would they determine whether physician negligence had occurred? While contract law had allowed a relatively simple determination of cure, or failure to cure, a plaintiff who sued a physician under tort law called on the court to determine if the physician had somehow acted negligently, and if in some way that error had led to injury of the plaintiff. The courts were confronted with the problem of locating and defining physician error. In an era in which medicine was fragmented and localized, in which it could be characterized as heterogeneous, the courts found it difficult to determine what constituted an error. Ken De Ville has demonstrated that during the middle of the nineteenth century a glut of physicians, and the subsequently fierce competition in created, led to more and more physicians taking great pleasure in testifying that another physician had committed an error and therefore should not be trusted. Although the courts did not allow members of competing sects to testify against one another, they did not have any way of determining the sufficiency of a physician’s treatment, other than the testimony of other physicians. Each would testify how he would have treated the case. He would either testify that he would have treated it the same way as the defendant had, or differently, but there was no sense of a standard of error. This lack of a standard for determining error was not a serious problem in an era of competing sects, and admittedly differing practice. But as competition between sects came to a close, and allopaths began to win out, the idea of a standard became an issue for the courts. The New York State Court of Appeals in the 1898 case of Pike v. Honsinger found a way to begin to deal with this problem of error. The case is a remarkably clear turning point in medicine's transition from a heterogeneous and local endeavor to a homogenous, national profession.

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3

For the next five decades Pike v. Honsinger was repeatedly cited in malpractice cases. It is the definition of a landmark decision, as it sets the precedent for rulings on malpractice in every state, and even at the federal level. But Pike is more than a landmark decision; the case itself is filled with details - the injury, the format of care, the general practitioner - all common to cases of this period. By closely examining this one case we can witness the moment that the court began to press medicine towards a standard of care, while recognizing that medicine was practiced at a local level in which only local physicians could determine the nature of medical error.

Pike versus Honsinger George V. Pike owned a 135 acre farm in Northern New York, where he grew potatoes, oats and hay. He was a man of medium build and weighed about 185 pounds. As a younger man he spent ten years away from the farm, working out west, first for a railroad company and then for a lumber company. In his spare time he enjoyed playing the violin, and played well enough to perform at local dances.5 On May 2, 1888, at age 47, Pike was driving along the road from Chazy to Altona in Clinton County. As his three year old colt pulled the skeleton wagon Pike saw his friend Felton coming the other way. They waved at one another and, just as they passed, Felton's wagon made a noise that startled Pike's colt. She started, and raised her rear legs. Pike pulled her up, but as he did her legs caught in the crossbar, and in trying to free them she kicked Pike's knee. Pike did not think that the pain was too bad at the time, though the leg did tighten up and feel cramped. When he got down from the wagon he discovered that the moment he took his heel off the ground the leg would draw up. He tried to straighten out the problem with the horse, but in doing so he had to unhook the bridle from the reins and she got away from him and took off down the road. Pike got his leg into place and sat down. The property adjacent to the road belonged to James O'Neil, who was out plowing at the time of the injury, and seeing Pike sitting on the side of the road he went out to see if he could help. He temporarily set Pike's leg and then put him in his own buggy. Pike asked O'Neil to take him to his regular physician, Willis T. Honsinger.

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About a mile south of Chazy the two saw Dr. William T. Honsinger's wagon. William, Willis' father, shared a practice with his son, and Pike and O'Neil stopped to ask Old Doc Honsinger to look at the leg. He made a brief examination and then told O'Neil to bring Pike to his office at the drug store. Doc Honsinger said that he might want some help, and that Willis would be there to assist him, however Willis was not at the office when Pike arrived. At the office Pike sat in a chair, and slipped off his pants so that the doctor could examine the leg again. The doctor had Pike straighten out the leg, and press on the knee to force the leg down straight. He applied 2 strips of adhesive plaster, each about one foot long, from the calf, making an X across the kneecap and extending up to the thigh. Next, he wrapped a bandage around the leg from the thigh to the calf. He placed a short splint, eighteen inches long, behind the leg, and finally wrapped an outer bandage around the leg and splint. Doc Honsinger told Pike to go home, and that if he felt able, to come back to the office in 2 or 3 days so that he could reexamine it. The doctor accompanied him to O'Neil's wagon. The good Samaritan James O'Neil drove the 5 miles back to Pike's farm. About half-way back Pike noticed that the outer bandage was loose and trailing from his leg, and the splint no longer fit tightly against the back of the leg. By the time he stepped on the piazza back home, the outer bandage had unwrapped 3 or 4 feet, and was getting caught in his boot. The inner bandage remained on, but the leg had swollen, tightening the bandage so that it pressed a deep imprint into the skin of the leg. Pike worried about the loosening of the outer bandage and the tightness of the inner bandage, and so sent word to the younger doctor, Willis T. Honsinger, asking him to come to Pike's house when he got home. Willis T. Honsinger did not come that Wednesday, nor did he appear on Thursday, Friday, or Saturday. Finally on Sunday night, May 6, 1888, Pike sent word that he would like to have Willis come to the house, but he would be happy to see either of the doctors. On Tuesday, May 8, old Doc William and young doctor Willis arrived together at Pike's home. Mrs. Pike greeted the two at the door and took them to the bedroom where they found George propped up in his bed. Willis and George discussed the accident, as well as old Doc Honsinger's treatment. Willis told George that his father had already gone over the treatment with him. Willis removed the bandages, the splint, and the

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adhesive plaster. By this time the upper portion of the knee was swollen to the size of his upper thigh. Pike told the young doctor that he thought that old Doc Honsinger had not set the leg right, and that he had sent for the younger doctor because he would rather not have the father treat the leg. Honsinger examined the leg, and then told Pike that when the colt kicked him she broke the ligaments below the kneecap. He told Pike that he would have to stay in bed for 6 to 8 weeks, and be perfectly still. He raised the foot about six inches, and said that if he kept his leg in that position "nature would perform a cure without a splint or a bandage."6 He washed the leg off and then reapplied the bandages in the same manner in which his father had applied them. Honsinger was a bit worried that his father would think that he was taking a patient away from him, so he told Pike that he could only continue treatment if Pike told his father that he wanted to be treated by young Doctor Honsinger. William was brought in and Pike told the elder Honsinger that he "was getting old, and as it was quite a drive I guess that I will let Willis treat the leg." The father told Pike that he "could treat the leg as well as Willis could" but that if Pike "would rather have Willis, all right." Willis, undoubtedly feeling uncomfortable told his father, "It will not make any difference; you can come up when I do." From then on, young Doctor Willis T. Honsinger took charge of the case, and his father never visited Pike again. On Friday the 11th, Honsinger returned to Pike's home without his father, and removed all of the bandages. It took about twenty-five minutes to do this and then he slipped a board under the leg and spent another twenty-five minutes bathing it with warm water and a sponge. He used a measuring tape and a straight edge to measure any differences between the two legs, and discovered a half inch difference in the location of the patella. He replaced the bandages, but used a splint about 6" longer than the one that had been used by his father. He returned to the house four more times, and on the last trip on June 7 he told Pike that the leg was doing nicely, then put his hand under the leg, saying that a ligamentous union had begun. The leg was still swollen, and after bathing it he replaced the long splint with a short splint. Honsinger said that Pike "had been begging of me to put on a shorter splint so he could go out and do this work, assessing, saying that he was poor and if he could get out a few days he could get pay for doing the work, and could rig up a wagon and made all sorts of

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promises. I told him in the presence of his wife that I would not assume any responsibility for injury that occurred from his going out at that time."7 Honsinger then told Mrs. Pike that he would let Pike out. In a way she had been involved in the treatment from the start. As she put it, "He did not always fasten the bandages before going away; he almost always wound them; but sometimes I sewed them after he went away; twice he left them unfastened.... I sewed down the ends so that it would not unfasten."8 Honsinger put on the short splint, the one that was first used by his father. He told Pike that he could walk about the house with the short splint on, but that he needed to be very careful because the "ligament that had formed was liable to stretch or break away."9 Pike rigged up his wagon so that while in it his "heel rested on some boards attached to the dash, which [he] had arranged for that purpose; the roads were rough and jolted [him] a good deal." When he did go out in the wagon he "did not get run away with or thrown out of the wagon."10 On that last house call Honsinger told Pike to come into the office the following week. On the June 15, Pike made his first office visit since his injury in May. Sometime between the 1st and the 15th of July, Pike felt a space in the middle of his kneecap. He returned to Honsinger's office and told him that he did not think that it was set right. Honsinger read Pike portions of Hamilton's Treatise on Surgery to demonstrate that he was treating the injury correctly. The treatment continued for months, until February 15th, when Pike said again that the treatment was wrong. Honsinger looked at the leg again and suddenly said "by Jesus, that is so."11 On March 1st, when Pike saw Dr. Ransom passing his house he called out to him. Ransom came and looked at the leg and diagnosed it as a fracture of the patella.

The Trial The Plaintiff's Case Pike obtained the services of the law firm Riley and Conway of Plattsburgh, New York. On September 11, 1889 they filed a complaint with the Clinton County Court and amidst the two pages of the complaint is one enormous sentence charging Doctor Honsinger,

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The defendant undertook to and did treat and care for plaintiff's said injuries during said year but did it so negligently and carelessly and with so much want of skill and failure to use due and proper skill and care and to give plaintiff proper and necessary attention and instruction in the matter that the fracture of plaintiff's patella and other injuries was never reduced or cured and plaintiff has practically lost the use of said leg by reason thereof and became and was made a cripple for life and unable to attend to or transact his ordinary business or scarcely any business and caused great unnecessary loss of time, pain and suffering.12 Pike and his attorney demanded that Honsinger pay $10,000 for the damages resulting from having caused the injury, as well as all the costs associated with the action. Honsinger secured the services of local attorney Royal Corbin, and within two weeks they filed a response denying any negligence. They counter-charged that Pike not only caused the injury through his own "fault, negligence and misbehavior", but that he still owed Honsinger $85.00 for his services. Honsinger expected payment for these services and reimbursement for the costs of having to respond to Pike's action. More than one year later, on November 16, 1891 a jury was called before the Honorable S. Alonzo Kellogg and the trial began. It took only three days for the trial to be completed, and a verdict to be reached. On the first day of the trial Mr. Riley called his client George Pike to the witness box to relate the basic facts of his injury and treatment. Riley coaxed him through the story which he told quite easily. Then Royal Corbin rose to cross examine him. Corbin wanted to show that Pike was not really injured, and/or that any bad result he had from his original accident had come from his own foolishness in doing more work than he should have during the healing process. Corbin finished his cross examination by asking if Pike had sued Doctor Honsinger for $10,000, and he replied that yes he had. Then Corbin asked, "Have you paid Doctor Honsinger's bill?" To which Pike replied, "He has never presented any."13 Riley had a few new questions during his re-direct examination. Pike testified that after the day when Dr. Ransom was passing his house and he had asked him to stop in to look at his knee, he had gone to

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Burlington to see another physician. Pike said, "I went to Doctor Phelps because Dr. Ransom wanted him to see my leg and see what he could do for me. I went to Burlington and saw him at the Van Ness House." But Royal Corbin's objection prevented Pike from testifying about Dr. Phelp's opinions. Pike was finally allowed to testify, "I submitted my injury to physicians at Burlington for advice and not for treatment. They expressed opinions about it."14 Before Pike had a chance to step down from the stand, Judge Kellogg had one question on his mind. From all that Pike had said about the events that had led him to this day of trial, Kellogg wanted to know one thing, "Did you go there [Burlington] for the purpose of a lawsuit, or to find out whether you had a case for a lawsuit?" Pike replied, “I did not go there for the purpose of a lawsuit. I went over because Dr. Ransom thought I had better have Dr. Phelps examine it."15 Next Riley called the good Samaritan who had given Pike a ride to the doctor, and back to his home: James O'Neil. He testified that the leg was injured, and that the bandages came off during the ride home. The defense stopped his testimony, accepting the statement about the injury, and the court ruled that the statement about the bandages was immaterial. Judge Kellogg said that only what Honsinger was told about the bandages coming off would be material. George's brother, John stepped up to the stand to report on what he saw of Honsinger's care. On one occasion he had actually helped Honsinger remove the bandages and splint, bathe the leg, and then reapply the bandages and splint. In regard to the day Pike asked to go out assessing he testified, "I think it was the time I helped the doctor out that I heard him tell my brother he would be over the next Wednesday, and he thought he could let him out to go and do his assessing... he lifted up my brother's foot, put his hand under the knee joint, lifted it up and told him that he would have a good leg; he said it was doing well."16. Following John Pike's testimony, Judge Kellogg adjourned the court until 9 o'clock the following morning. The following day Pike's attorney Riley called to the stand John Semple, the man who owned the farm across the road from Pike, to the stand. When asked if he had seen Pike working around his farm he replied that yes he had, but that "his limb was pretty stiff... where it was not perfectly smooth it seemed hard work for him to get over it, as he would have to swing his leg up and was hard work to get along."17

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Defense attorney Royal Corbin wanted to know more about Pike's activities while he was under Doctor Honsinger's care. Semple testified that Pike went out assessing a few times during his treatment, and that Pike used no crutches, but did have a way of keeping his leg up on the buggy. He also saw Pike mowing a few times that summer, without any special apparatus to support his leg. Mrs. Pike took the stand to corroborate that Honsinger did a poor job of bandaging, and that he had allowed Pike to go out assessing. On cross examination Royal Corbin suggested that Doctor Honsinger had required Pike to use crutches, but Mrs. Pike answered that she had never heard anything about using crutches, nor had Pike ever used any while under Honsinger's care. The defense called two more neighbors who had worked with Pike, Herbert Stiles and Abram N. Long. Stiles testified, "I think the leg affects his ability to work. I have noticed him stumble several times during the half a day I was with him. This was at his place where the ground is not very rough".18 He also said that Pike had leased out the farm for the first year after the accident, and that since then he had always employed a man, though he continued to do some of the work, including loading and unloading wood, and getting his oats and potatoes. Abram Delong reinforced the testimony that Pike had not been cured, testifying "When he stepped on something that was not right, he would jog back and stumble down."19 Delong also slipped in a bit of hearsay evidence that was not objected to by the defense. He told the court, "I know Dr. Honsinger, Jr. I think it was a year ago last summer he called me into his office and said he wanted to subpoena me as a witness; he inquired in regard to Mr. Pike's ability to work, and wanted to know if he worked any; I told him he did; as we were talking about him he said 'Mr. Pike is a damn lazy cuss and will wait a long while before he gets a cent out of me.'"20 Before beginning to examine his expert witnesses, Riley put Pike on the stand once again. He inquired about the day Pike went to Honsinger's office to complain about his treatment, and to tell Honsinger there was a separation in his kneecap. On that day Honsinger told Pike that the treatment was correct, and sent a young doctor, who was studying with him, to fetch Hamilton's Treatise on Surgery. Riley had Pike identify the passage that Honsinger had read to him. The section was read in court, and plaintiff's counsel offered to read the entire section on the treatment for a fractured patella. Judge

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Kellogg ruled that was unnecessary because Honsinger did not seem to have offered any more treatment than that which was read. Plaintiffs council disagreed saying, "We offer it for the further purpose of showing it was not the treatment he adopted; that the defendant stated that the witness was to have a good leg and used the book as a means of deceiving the witness."21 Kellogg ruled that no further reading was necessary. Pike effectively withstood cross examination. Corbin asked him what had happened that day in the office. Pike: "I told him that I thought the leg was not set right, he went in and got that treatise to show me that it was." Corbin: You thought it was all right if you read it in a book? You thought the knee was set all right? Pike: No sir. I said 'Your father did not set the leg for a fractured patella and you are not treating it for that. You are treating it for a rupture of the ligaments.' He said the treatment was just the same. I did not agree with him. I could see that the bandage was not put on there [in the book] as it was put on my leg.22 Continuing on that same day, Riley called his first expert witness, Dr. Ralph Irwin. He described himself as a physician and surgeon, who had graduated from the University of Vermont and had been in practice for over thirty years. He was currently practicing in Maline. When questioned about his experience with Pike's type of injury he responded, "I have had experience in treatment of fractured patella, but not of the rupture of the ligamenti patellae. I think a rupture of the ligamenti patellae is a very unusual occurrence; I never saw it."23 He pointed out that in an injury of this kind it is extremely important to make a careful diagnosis before beginning any treatment, and because a physician cannot diagnose a knee injury properly when the knee is swollen, the swelling must be brought down before treatment. In fact, Dr. Irwin argued, the separated parts cannot be brought together if the leg is swollen, though with the correct diagnosis and treatment there is a good result 95% of the time. Irwin explained that in the correct treatment a physician applies a long splint for 2-3 months, and then a short splint for the remainder of a year. He should not allow the patient to do any work for a year, and no hard work for a year-and-a-half,

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although to keep the leg flexible the patient should do moderate general exercise after four weeks. 24 Corbin was extremely prepared and very persistent in his cross examination, using several medical texts he had brought with him throughout his examination. When asked how many treatments existed for treating a fracture of the patella, Dr. Irwin responded "I don't know how many ways there are among physicians of treating a fracture of the patella. There are a good many, and all have more or less approval of physicians." Riley pressed on and asked again how many ways there were. He asked if there were 93 ways to treat it. Dr. Irwin replied, "I don't know that there are 93 ways." Corbin asked if he had heard of the medical author Stimson. Dr. Irwin said that he had, and that Stimson was a good authority on fractures of the patella. Corbin read from Stimson's work, quoting "Buron says he made a list of 91 different methods of treatment excluding five or six more of which he was unable to obtain sufficient details." Irwin argued that there could be that many, but that they probably vary only a little in "non-essential matters."25 What is most remarkable about Irwin's time on the stand is his lengthy cross examination by Judge Kellogg. While the defense examined him for what in this case was a lengthy 10 pages of testimony, Judge Kellogg's questions take up more than 7 pages. Kellogg's examination often took on a very aggressive tone. He was interested in whether there really was any difference between the treatment for a broken patella, and the treatment for a ruptured ligament. It is clear from his questions that he thought that there was in fact no such difference, and that therefore Honsinger could not be guilty of malpractice. Judge Kellogg: If that ligamentum patellae is broken so that it carries a small portion of the patella; I ask you whether in your judgment that might not be called in medical language and in popular language be called a rupture of the ligamentum patellae?" Dr. Irwin:" No, I would not call it so. I would call it a fracture of the patella; that means a fracture of the bone."

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Unhealed Wounds Kellogg: Suppose the ligament is torn away and carries with it a little portion of the bone, might that not properly be called a rupture of the ligament of the patella? Irwin: I think not, because the ligament is not ruptured, but the bone. If it is torn away from the insertion it is ruptured. Kellogg: Suppose in this case the ligamentum patellae had been torn from its insertion in the bone (the patella), without carrying away any part of the bone with it, would such an accident be treated any different, or otherwise than it would if it had been carried away any part of the bone with it [sic]? Irwin: Yes it would. If the patella was fractured it would be good practice to keep the bones in as near apposition as possible. If the ligaments were torn away the practice would be to get the end of that as near back to the bone as possible. The principle difference would be to keep the patella down in its proper place. Kellogg: The principle difference would be that the pressure would be different to keep the patella in its place. Irwin: No Kellogg: Tell me what the difference is. In one case a part of the patella is carried away, and in the other case not, but there is a rupture of the ligament. How would you treat them differently? Irwin: There would not be as good a chance to keep the lower part of the patella in place. Kellogg: As if there was a part of the bone. Irwin: No. Kellogg: So it would have been a slighter accident to have the whole ligament ruptured from the bone entirely without carrying away any part of the bone than to have it ruptured by taking part of the bone with it. Irwin: No, I don't think it would.26 The questioning continued for some time on this line until Kellogg finally switched over to how long the bandaging and splint should have been left on, and when Pike should have been allowed to move. Kellogg showed that Hamilton in his Treatise argues that the apparatus should be removed after four weeks, not the twelve weeks that Dr. Irwin had recommended. Irwin conceded that Hamilton is a good

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authority. Next Kellogg went after Irwin on the issue of the wagon ride. Kellogg: Do you say that after a man has been treated four or five weeks and has arrived at a condition when the doctor thinks it is safe to take off the apparatus and allow him to go about, that it would be a hazardous thing for him to get in a wagon, if he got in carefully and his foot or leg was held in a proper position, and if he drove a tolerably safe horse? Irwin: I should think it not safe.27 In his answer Irwin spoke of a satisfactory treatment being when the leg has a "good, serviceable union." Kellogg asked, "Don't you call a good serviceable union a union that enables a man to go about pretty well, move his leg, and do all his ordinary business, perhaps not so easily at first, but still in a tolerable way? Is it not a good serviceable union? If it was a shorter union would you call it better?" Irwin: If it was shorter and stronger. Kellogg: If it is strong enough to enable the man to go about everyday doing the kind of work that he formerly did carrying oats, carrying potatoes on his back, drawing wood, piling wood, mowing on a mowing machine with a scythe doing that right along, don't you call that a good serviceable union? Irwin: I should not call it good. I make a distinction between good and perfect. I call it good when it is not very bad. Kellogg: Is this very bad when it enables the man to do the kind of work I detailed to you? Don't you call it good? Irwin: No; I don't.28 But Irwin broke down in continued questioning by the Judge. “I call it weak because it is, I can't explain how I know. I saw this man yesterday. Never saw him before that I remember. Never examined him until last evening. I examined him in some office in town; I think it was the office of the plaintiff's attorneys. I do not attribute the present condition of his leg to anything which he has said as to the treatment of Dr. Honsinger."29 Riley did a re-direct examination, but the damage done by the judge could not be repaired. Riley needed to move on to his next

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witness, Dr. Ransom, a physician and surgeon who had practiced for ten years, and currently had an office in Clinton County. Unlike Dr. Irwin, Ransom had actually examined Pike in March 1889, in the midst of Honsinger's treatment, and therefore would make for a far more imposing expert. Ransom testified, "It was sometime in the month of March or February, 1889. I think I was driving by and was asked to examine it and did. I suppose I was paid for it. I found a fracture of the patella..." But when Riley asked if the treatment given by Dr. Honsinger was "the usual and settled method of treating such a case" Ransom became intransigent. Ransom: I don't pose as an expert in this case. I don't propose to give any expert testimony. I object to answering it on the grounds that it is a hypothetical question. Riley: You say you decline to answer? Ransom: I decline on that ground. To give expert testimony in this case? Ransom: Yes sir.30 Although he had triumphed in getting Ransom to say that he had disagreed with Honsinger's diagnosis, Riley could not lead him into testifying against his fellow doctor's treatment. Riley called Dr. Dunham, a physician and surgeon who practiced in Plattsburgh, and had a total of thirty years experience. Like Dr. Ransom, Dr. Dunham refused to testify as an expert. Dunham said, "My knowledge of fracture is too limited to be able to speak as an expert." Riley asked a few more questions and determined that Dunham had treated patella fractures, and in fact had a similar case right now. Riley: Do I understand from you under oath that you have been practicing your profession as a physician for 30 years or so and have treated fractures of the patella and are now treating a ruptured ligament of the patella, and have not sufficient knowledge of the treatment to say? Dunham: I don't think that treating two or three cases would enable me to speak as an expert.

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Riley: Have you not by study of medical works acquired sufficient knowledge to have an opinion as to the proper treatment of fractured patella? Dunham: No sir, I could not tell until I saw the case.31 Riley's case seemed to be unraveling. These doctors refused to testify against a fellow member of their profession. The judge had turned his only expert witness against him. He had little to do but recall that expert, Doctor Irwin, and attempt to repair the damage done when Irwin had testified, "I do not attribute the present condition of his leg to anything which he has said as to the treatment of Dr. Honsinger." But Irwin did not get the opportunity to ask this question. It was Judge Kellogg who asked if Dr. Irwin understood the question that had been presented to him, and Irwin replied that he had. Kellogg asked, "Did you say you did not attribute at the present condition to anything which he said about his treatment by Dr. Honsinger? You answered in that way? Irwin: Yes, sir. I meant that I did not attribute his present condition to anything that Dr. Honsinger did for the man. Kellogg: Or failed to do? Irwin: I don't say or failed to do.... it was not the treatment by the physician that I attribute it to, but the subsequent use of it. Irwin defined Honsinger's negligence as a single error: He should not have allowed Pike out of bed to go out assessing. Irwin realized that there are a variety of methods for treating this fracture, but was unswerving in his conviction that a patient should not be allowed to get up to do work. Kellogg knew immediately that this left one area open for error on Irwin's part. Irwin was sticking to a particular timetable for treatment, when the issue was actually that the patient should not use the leg until there had been a good union. Again, Irwin would not budge. It might be nice to examine a patient to determine if he had healed early, but Irwin said, "I don't think you could tell by personal examination how strong the ligament is."32

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The Defense Case As Riley had called his client Pike, so Royal Corbin called Dr. Honsinger as his first witness. Pike had established the plaintiff's version of events, and now Honsinger would establish the defense's version. Honsinger quickly testified about the day he allowed Pike to go out assessing, saying, "On June 7th I visited him, and as he had been begging me to put on a shorter splint so he could go out assessing, saying that he was poor and if he could get out a few days he could get pay for doing the work, and could rig up a wagon and made all sorts of promises. I told him in the presence of his wife that I would not assume any responsibility for injury that occurred from his going out at that time. I removed the long splint on June 7th, and reapplied the short splint, the same one on in the first place." During Pike's next visit to his office, on June 15, Honsinger examined the patella and "found it in place, apparently united, union established." Again Honsinger told Pike "to be very careful and not use that limb any more than he was obliged to in doing his work assessing, riding about with the foot raised up." Pike told Honsinger "nothing about doing other work on the farm."33 Honsinger went on to testify that during subsequent visits to the office the leg continued to improve, and that he was able to get "more motion out of the joint." But in July Pike had complained that the stiffness in his knee persisted. "He said he would rather have a wooden leg than a stiff knee, and I told him it would take quite a long while for him to get the use of the knee joint, but he would in the end get very good use of it." After this Honsinger stopped keeping records of Pike's visits. The next time he saw Pike was around the beginning of September, when Pike complained about a separation of the fragments. Honsinger testified, "This was the first time he ever spoke to me about a separation. He never mentioned anything of that kind to me before. I told him there was some separation of the fragments." Honsinger told Pike that if he did do any work, that he must wear the splint. When he saw Pike again in November he reiterated this prescription but Pike "said he could not wear it and do his work."34 Finally Corbin asked Dr. Honsinger about a knee-cap that he ordered made for Pike. Honsinger said that obtained the silk-elastic knee-cap for Pike, but that Pike had said that it hurt the back of his leg so that he could not wear it.

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Riley began his cross examination by asking Honsinger about the state of Pike's knee when he first went to Pike's house. Riley: Could you tell whether it was a fracture of the patella with the swelling? Honsinger: I could if I had removed the plaster and moved the patella. Riley: The plasters left on and the swelling there, were you able to ascertain whether there was a breach of the fragments? Honsinger: I was not positively at that time.35 Honsinger was confused as to whether he had diagnosed the injury as a fracture or a rupture. He said "I might have told Mr. Pike he was suffering from a rupture of the ligament.... I probably did." Then a few minutes later he said, "I don't know that I ever told Mr. Pike that he had a fracture of the patella. Mr. Pike is not suffering today from a fracture of the patella, but is suffering from a condition of the patella where there is some of the bone attached to the tendon above and some to the tendon below. When I say a thing is broken, I mean it is separated into pieces." Riley asked, "Today we have got Mr. Pike with a broken bone, broken into two pieces: would you call that a fracture? Honsinger answered vaguely, "We say it is at a line where it might be called a rupture of the ligament or a fracture. I call it a rupture of the ligament."36 Honsinger said that he would call it a fracture if the patella was split in the center of the bone, but a rupture if it was split at a quarter of the bone. When Riley asked on what authority he based this view, Honsinger replied that he had heard it in lectures. When pressed on his course of treatment, he said that although he referred to Hamilton's Treatise he did not treat Pike according to it, but had used "the general principles laid down in Hamilton."37

Honsinger's case - 5 Experts, One Assistant, and 5 Witnesses In many ways the case focused on the disagreement between Pike's and Honsinger's version of events. Pike maintained that Honsinger's

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treatment had led to his crippled condition, and Honsinger argued that Pike injured himself by working too vigorously. Pike's attorney Riley had been unable to secure physicians who could effectively support his case. His one expert, Dr. Irwin, adamantly argued that Honsinger failed to care for Pike properly when he allowed Pike to work at all, but Irwin was not an impressive witness because he had only examined Pike the day prior to his testimony. The two physicians who had examined Pike, one of whom had testified that Pike's injury was a fracture of the patella and not a rupture of the ligaments, had both refused to give expert testimony against a fellow physician. Dr. Honsinger had no such difficulty with his experts. They were plentiful, and they were authoritative. His first expert, Dr. Phelps had been a lecturer on surgery at the University of Vermont and at the University of New York, and during the course of his career he had seen or treated 30-40 fractures of the patella. He was adept at testifying and even brought with him a diagram of the knee. In addition to all of these qualifications, this is the doctor that Pike had visited in Burlington after the physician who had passed by his house had told him to seek another opinion. Dr. Phelps was clear and concise in his explanation of the injury, stating "When a rupture of the ligamentum patellae occurs it is usually due to a blow or may be due to a muscular action. When a rupture there takes place it usually takes a small portion of the bone and that is what I find in this case on examination.38 He also smoothed over the possible misdiagnosis of the injury. Honsinger had diagnosed it as a rupture of the ligaments while other physicians had testified that it was a fracture of the patella. Phelps said, “A rupture at this point could be called either a rupture or a fracture. My opinion as a physician is that there is no difference whatever in the mode of treatment."39 It was becoming a case of definitions: rupture or fracture, good result or bad. Phelps would not define a good result, but did discuss the outcome of Pike's treatment by saying, "As an average result.... I should say, if it was mine, it was a good average result and I should expect sooner or later to have a very useful limb. It is a useful limb today, a good one, but not a perfect one by any means." He defined the result as good, and the treatment as exemplary, testifying, "It is exactly what you will see in the hospitals in New York by the very best men, I think they apply the same principles in Bellevue to it as in this case."40 Corbin raised the issue of Dr. Irwin's complaint that Honsinger should not have allowed Pike to go out. He asked "would you regard it

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as improper or bad practice for him to allow the patient to go and ride in a wagon provided he took good care not to injure the limb...?" Dr. Phelps replied, "If the patient was an intelligent man, I would not, because he would not do himself any harm. The motion would not be injurious with a proper splint and an easy riding motion." Corbin had responded to one of the plaintiff's arguments and turned the questioning over to Riley.41

Cross Examination Like Corbin, Riley had been studying the medical texts, and he had discovered that he could not find a single one that recommended the treatment given by Dr. Honsinger. While he had difficulty getting a physician to state that Honsinger's treatment was absolutely wrong, he could show that no text said that it was proper. He asked Dr. Phelps what this might mean. Phelps replied "If the medical texts do not agree with the principles which the profession accepts, I disregard them."42 Riley had many medical texts on the table in front of him. He wanted to push the issue further. He asked, "Can you mention a book on the table which prescribes the treatment Dr. Honsinger adopted in this case?" Dr. Phelps replied petulantly, "I think I could if I choose, but I don't choose to; I give you my opinion." He then went on to say that there were probably 90 different ways to treat such an injury.43 Riley pressed him on the number. He asked where Phelps had gotten it and Phelps could not say. Riley asked how many ways Phelps knew of treating a fracture of the patella. Did he know 25? Phelps replied "I don't know that I do." Riley asked Phelps how he could tell that Honsinger's treatment was correct when no text listed it. Dr. Phelps argued that there are "general principles" to such treatment, and that Dr. Honsinger's treatment was in line with those principles.44 Riley moved on to Pike's visit to Dr. Phelps and tripped him up a bit. Phelps had offered to wire the separated parts of the patella together, and Riley asked, "Isn't that dangerous practice" Phelps said that there is indeed a 5% mortality, but he clarified the situation by saying, "I am not in favor of wiring patellas in new fractures, but in old ones, yes, where the limb is useless, as his looked to be two years ago."45

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Riley spotted the error and slyly restated the question, "So you advised Mr. Pike two years ago to submit to the operation because his limb appeared to be useless? Phelps replied, "At the time I did." Riley, preparing to reel Phelps in, intoned, "Did you say a little while ago that he had a fairly good limb then, or that in substance?" Phelps, trapped, had to restate his answer. "Not a fairly good one. I don't think I said that. If I did I will correct it."46 Riley had caught Phelps in a contradiction, and later Phelps restated his diagnosis again, saying, "I call the union a fair ligamentous union."47 But it was too late. Phelps had already testified that it was a "useless limb." Honsinger and his attorney Royal Corbin had brought in a very impressive witness in Dr. Phelps, and their later experts had equally impressive qualifications. The next witness was Dr. Grinnell, a professor of medicine at University of Vermont, Chief Medical Advisor to the Central Vermont Railroad, and on staff at Mary Fletcher Hospital in Burlington. During the course of his career he had treated a few cases of fracture of the patella. He had been an expert witness "a great many times before" and some of those had been malpractice suits. We can infer that he always testified on the side of the physician in such cases, because as he said “I managed to stop the suits."48 Grinnell said that Pike's condition was the common result in such cases, and when asked about the common or appropriate treatment for such an injury, Grinnell, like Phelps sidestepped the question by testifying, "I don't think there is any settled practice." On cross examination Riley asked, "When you say you consider a thing good or bad practice what standard do you go by?" Grinnell replied, "All of those things are based on common sense... All works written on this subject contain the settled or proper practice, and at the same time the details of care is not stated in the books [sic]. Common sense will have to lead us." 49 Three more physicians came to the stand for Honsinger and all testified that there was no common method of treatment, and though they would have treated Pike somewhat differently than Honsinger, the treatment Honsinger provided had yielded a common result. The last doctor to take the stand in Honsinger's defense was not an expert witness, but Dr. O'Neil, the man who had been studying with Honsinger at the time. He had completed his training before the case came to trial and was now setting up his own practice. He did not need to testify as an expert witness because he had actually been present

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during some of Honsinger's treatments of Pike. Dr. O'Neil said that not only was the treatment good but that Pike had come by one day when Honsinger was out and "He said that he would like I would tell Dr. Honsinger that he was getting a better result than he anticipated and that his limb was about as good as the other. He said he would like to tell the doctor he was getting along well and I told him I would do so cheerfully."50 On cross examination Riley pointed out that no one else had heard this. Two of Pike's neighbors came forth and said that they had seen him working around the farm during the course of his treatment. Two had seen him chasing cows. Riley attempted to turn it to his advantage by asking one witness, "He made a pretty bad job running?" Pike's neighbor answered, "Of course. A cripple can't run as a man that is not a cripple."51 Eugene Wood, a store owner in Altona who was once in Honsinger's office when Pike came in testified, "The doctor asked him how he was getting along, if he was wearing the splint, and he said he was not. The doctor told him to wear it if he wanted a good limb. Mr. Pike said he could not wear it; he had so much to do he could not. The doctor cautioned him about it and said he had better wear the splint and let the work alone for a while."52 Henry McCreedy a townsman who had spoken to Pike in the fall told the court, "He said he had a very good knee; a better knee than he expected."53 Finally, Honsinger and Pike were each recalled to discuss the billing. Honsinger's countersuit had demanded $85.00 for the services rendered to Pike, but when Royal Corbin asked him what his bill was Honsinger testified that he had billed Pike $200.00.54 Riley pointed this discrepancy out, and noted that no bill was presented to Pike until after the suit was started. Pike testified that he had paid Honsinger $18.15.55 The evidence was closed, and the defense moved that the issue was a question for experts, and that since the experts agreed it was good practice then the judge should rule for the defense and award Honsinger $85.00. The judge then spoke from the bench. He believed a verdict for the plaintiff would have to be set aside because "there was nothing in the treatment of the case by the defendant that can even be criticized."56 After discussing the expert testimony briefly Kellogg said, "I think there is no proof that what the plaintiff did on the farm did any injury. I think there is no proof that he has suffered injury. I think the proof is that he has an average result, and that is all he could expect when he

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consults a country physician. He did not go to a specialist. When you consult the ordinary physician you don't expect to get what you do when you consult a specialist and pay for it."57 He did not feel at liberty to direct a verdict for the counter claim of the defense and Royal Corbin, seeing the writing on the wall, quickly withdrew that motion. Kellogg then directed a verdict for the defendant. Riley objected and asked that the decision go to the jury because on the whole the questions raised by the judge were questions of evidence, and therefore for the jury to decide. His objection had no result. The jury was dismissed without ever having to deliberate or decide on the case of Pike v. Honsinger. Corbin motioned to have the defendant recover the costs of the trial, $103.60, from Pike, and Kellogg directed this action

The Appeal In December 1894, Pike and his attorneys Riley and Conway appealed Judge Kellogg's decision to the Court at General Term in Albany. Two months later, in February 1895, the court presented an unwritten affirmation of the lower court's decision. On April 13 1895, Pike appealed to New York's highest court, the Court of Appeals. Riley and Conway filed an extensive brief, including a remarkably thorough record of the transcript.58 The argument of the brief contains one major point, two minor points, and a digression on expert witnesses. Judge Kellogg's directed verdict, which did not allow the case to go to the jury, was the focus of Pike's appeal. While Judge Kellogg could have ruled on points of law, issues of fact are reserved for a jury. Following the record of the transcript, the argument of the brief begins, "Point 1: It was error for the court to direct a verdict in favor of the defendant, because the evidence strongly tended to show that the defendant in his treatment of plaintiff either did not possess requisite skill, or if he did, did not use it and was guilty of negligence in his diagnosis and treatment."59 The brief goes on to point out that current law held that a physician "Having engaged in the performance of services requiring skill and care, is liable for want of the requisite skill or an omission to exercise

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proper care."60 Riley and Conway argue that part of that requirement is an honest assessment of the results of the treatment by the surgeon. If the plaintiff was mislead by the surgeon into believing that the result was a common and good one, and therefore did not seek additional surgical assistance, this gives the plaintiff a cause of action, and they cite an earlier decision of the Appeals Court Carpenter v. Blake.61 They also found that the Carpenter case had many similarities to their own. They pointed out that like Pike, who had discovered a separation of the patella and then complained about his treatment, Carpenter had discovered a protuberance at the point of her fracture. Like Carpenter, Pike testified that from the beginning of his treatment his fracture had not been reduced. The court had ruled in Carpenter: "The strong fact that the limb was useless afterwards to the plaintiff presented evidence for the jury to determine whether there was a failure to perform successfully not an uncommon operation in surgery by reason or want of skill, etc."62 Riley and Conway point out that in Pike's case, he and several witnesses, including one of the defense's own expert witnesses, had testified that the leg was "useless." Ultimately Riley and Conway argued that information was presented that could have led a jury to find for the plaintiff. They point out that the testimony of the defendant, Honsinger, was contradicted by the testimony of the plaintiff, Pike. This is the very definition of raising a question of fact. As the Court had written in Carpenter, if there was any "testimony whatever to sustain a verdict"63 it would be an error to dismiss the complaint. Finishing their argument that there was sufficient cause for a malpractice action, and that the contradictory evidence should have been weighed by the jury, the two lawyers digress on the evils of expert witnesses of this case. They write, It will be remembered that almost every expert called by the defendant conceded that in important particulars the defendant's practice was not good, or in accordance with any settled method of procedure or authority if the plaintiff told the truth about his treatment. Their approval of the defendant's method of treatment was upon the assumption that the defendant's version of his treatment

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Unhealed Wounds was true. But clearly it was a question of fact for the jury...64

Their essay on experts includes quotes from variety of sources, from case law to Herbert Spencer. They point out that an eminent legal text states that "Courts and juries have, of late, come to regard the testimony of professional experts as entitled to little, if any weight." They cite the case of Templeton v. The People which declares, A mere expression of opinion as to the weight or effect of the evidence, which still allows the jury to be guided and governed by their own convictions, forms no proper grounds for an exception... The evidence of witnesses who are brought upon the stand to support a theory by heir opinions, is justly exposed to a reasonable degree of suspicion. They are produced not to swear to facts observed by them, but to express their judgment as to those detailed by others, and they are selected on account of their ability to express a favorable opinion, which, there is great reason to believe, is, in many instances, the result of employment and the bias arising out of it.65 Finally, in an argument which questions the very possibility of expert evidence, they turn to Herbert Spencer who "forcibly says in his First Principles, Part 1, Ch. 5, Sec. 5: 'Science is simply a higher development of common knowledge. Nowhere is it possible to draw a line and say here science begins.'" For Riley and Conway, a jury's judgment "certainly should not be controlled by the judgment of experts. Otherwise you make experts a tribunal to try one of their number and make anything like a jury trial impossible, or little more than a farce."66 The farce of experts trying experts is a particular problem for physicians. While the brief notes the fact that an expert's opinion can be swayed by his employment by one side, it argues that with physician experts the problem is compounded by the "brotherhood" of their profession. The brief states, No case illustrates so forcibly the danger of this as the case at bar; as here, the plaintiff, as the case shows, could not get any

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expert to testify for him but one, those put on the stand, declining; whereas the defendant produced them ad libitum. ..... here defendant's experts not only were biased by a desire to protect a professional brother, but had a strong motive arising from a desire to prevent suits for malpractice against the profession...67 The second point of the brief contains the plaintiff's exceptions to the rulings by the court, and these are not especially interesting. Riley and Conway made their final point in one sentence, "The judgment appealed from should be reversed with costs." 68 Riley and Conway focused on the fact that despite an apparent preponderance of evidence for the defendant (5 expert witnesses, and a total of 7 doctors including himself) his story was contradicted by the plaintiff and the plaintiff's expert. The plaintiff successfully attacked the defense on several points. The judge should not have stepped in and ruled for the defense, rather, the jury should have been allowed to decide which story was more plausible.

Respondent's Brief Royal Corbin in his appeals brief for Dr. Honsinger provided a much shorter version of the testimony from the trial. Naturally he focused on anything indicating that Pike had probably re-injured himself after Honsinger's treatment had begun, and that in fact, Pike had been seen doing all sorts of work since his injury and might not be crippled at all. Corbin argued that a fracture of the patella and a rupture of the patella were the same, and that in fact even if there were a slight difference in diagnosis all the experts agreed that the treatment was the same. He pointed out that Honsinger had testified that when he first examined the knee the ligaments and patella were in place, and no one contradicted this testimony. This means that the healing process had already begun, and that he could not have failed to begin that union through his treatment. Even the plaintiff's own expert witness, Dr. Irwin, testified that the figure 8 bandage used by Honsinger "is the method approved by all good physicians." Pike was obligated to demonstrate that the injury was caused by the defendant. He had to show that there was no other way for him to

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have been injured but for the negligence of Honsinger. Corbin then cites all the experts testimony that the defendant's treatment was good. He notes that, "The only difference of opinion among the doctors was as to whether it was prudent to let the patient go out as soon as he did."69 But, Corbin argues, this disagreement should have no bearing on the case. He writes, "Whether the patient should be allowed to go out, ride and walk a little was eminently a question of judgment and an error in judgment is not malpractice.’The medical man is not responsible for errors of judgment or mere mistakes in case of reasonable doubt and uncertainty' (McClelland's Civil Malpractice p. 215). The only criticism Dr. Irwin makes upon giving permission was that the plaintiff might get an injury. But plaintiff says he got no injury riding or walking."70 Corbin summarizes the defense case, noting that there is no evidence of improper treatment, no demonstration that there is in fact an injury, and no evidence that any problem with Pike could have been caused by Honsinger - therefore there is no case for the plaintiff, and the trial judges ruling should stand.

Court of Appeals Decision For the Court of Appeals to rule for Pike it would have to demonstrate that the jury "would have found all the facts in favor of the plaintiff that any reasonable review of the evidence would permit".71 The author of the decision, Judge J. Vann, had to construct an accurate version of the story that would prove the plaintiff's motion. Vann places great weight on several issues that Riley and Conway had merely mentioned. Ultimately Judge Vann argues that the jury could very well have found for Pike if they believed him and his witnesses. Van writes, While they might have found for the defendant if they believed him and his witnesses, if, on the other hand, they believed the plaintiff and his witnesses, they might have found that the defendant was guilty of negligence in omitting to reduce the swelling so that safe diagnosis could be made, in failing to discover that the real nature of the injury was a broken patella instead of a rupture of the ligaments; in omitting to place the broken parts in apposition, and to keep them there with proper appliances, and by taking proper precautions as to quiet for a sufficient length of time to bring about the best result; in dressing and flexing the leg without adequate care to keep the bones together, and in

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telling the plaintiff to flex it, without proper instructions to that end; in permitting the plaintiff to use his leg too soon and in a hazardous manner; and in assuring him that his knee was getting along all right, and that he would have a good leg, and therefore preventing him from securing other medical treatment. They might also have found that such negligence injured the plaintiff by preventing a better recovery, which would lead to an assessment of damages." While the lawyers had boiled down their disagreement to a few key elements in the case, Vann opened up a broad range of issues. His review of the case allowed so many possibilities for negligence that there was in fact no doubt that the case should have gone to trial, but it was the skill with which he stated exactly what is required of a physician that made this case a landmark decision. Although the idea of a standard of care by which physicians should be judged had been developed in earlier cases, including Carpenter, Vann found the language which nailed it down most precisely. He writes that the physician must use, That reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices.... The law holds him liable for an injury to his patient resulting from want of the requisite knowledge and skill, or the failure to use his best judgment. The rule in relation to learning and skill does not require the surgeon to possess the extraordinary learning and skill which belong only to a few men of rare endowments, but such as is possessed by the average member of the medical profession in good standing. Still, he is bound to keep abreast of the times, and a departure from approved methods in general use, if it injures the patient, will render him liable however good his intentions may have been. The rule of reasonable care and diligence does not require the exercise of the highest possible degree of care... to render a surgeon liable... there must be a want of ordinary and reasonable care, leading to a bad result. This includes not only the diagnosis and treatment, but also the giving of proper instructions to his patient in relation to conduct, exercise, and the use of an injured limb. The rule requiring him to use his best judgment does not hold him

28

Unhealed Wounds liable for a mere error of judgment, provided he does what he thinks is best after careful examination. His implied engagement with his patient does not guaranty a good result, but he promises by implication to use the skill and learning of the average physician, to exercise reasonable care, and to exert his best judgment in the effort to bring about a good result.

Implications of the Case The Pike decision is a turning point both for the history of medical malpractice and for the history of medicine. It creates a bridge leading from the way in which medicine was practiced in the nineteenth century, up to medical practice of the twentieth century. Nineteenth century medicine was heterogeneous, local, and personal. Individual practitioners, trained in widely varying programs, discovered their own methods of treating patients. Local practitioners found common diagnostic and therapeutic procedures. Most importantly - patients unable to travel great distances to obtain medical care - made competition for medical care a local phenomenon. Competition usually revolves around price and quality. In the nineteenth century both of these were controlled by local forces. A patient could not travel to New York for the most expert care. In most cases patients could not even travel 50 miles for such care. The New York State Court of Appeals was keenly aware of this fact and created a standard minimum quality that would be measured locally. Its decision required a physician to practice as competently as "physicians and surgeons in the locality where he practices." A physician need not practice at the highest possible standard, or at the level of the finest physician in the state or county. While the court maintained local medical standards, it rejected the testimony of another physician who would have done the same work himself. The court moved beyond personal testimonies on care, toward a broader definition of community standards for care. The expert witness was required to define the community standard. The practicing physician became required to have the "learning and skill... possessed by the average member of the medical profession in good standing." Injuring a patient through "a departure from approved methods in general use" would now create liability. How one other physician would have handled the case was no longer relevant. After Pike, the

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expert witness had to testify as to the method accepted by the medical community in a locality. The court determined that the error for which physicians would be held liable would have one of the following characteristics: • • • •

The physician's "Departure from approved methods in general use" The physician's "Want of ordinary and reasonable care" Failure of the physician to give "Proper instructions... in relation to conduct, exercise, and use of an injured limb" Failure of the physician to "exert his best judgment"

These are the legal standards for medical error set forth in the Pike decision, which also set forth duties implicit in good care. The most specific of these was the demand for "proper instructions," which expanded physician liability, and increased the need for a patient record, as the physician was required to demonstrate that he gave the patient the appropriate instructions. The creation of a medical standard for each locality bridged the conflicting senses of medical practice of the nineteenth and twentieth century. During the twentieth century the medical profession moves toward national standards for medicine, including uniform medical education and board certification. Despite this nationalization, physicians would defend themselves from suits by strict interpretation of the Pike doctrine of local standards. This issue of standards was further complicated by the varying degrees of training physicians received.

Physicians Respond to Malpractice Certainly physicians have always been concerned about accusations of negligence, and in the nineteenth century dozens of physicians wrote of their concerns, but few took any significant action to put a stop to the suits. At the opening of the twentieth century, however, many physicians had become particularly concerned about these actions of "blackmail" which were brought against them. In 1901 the New York County Medical Association resolved to create a fund to defend its members against such suits. The editors of the Journal of the American

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Medical Association summarized the philosophy behind such an action writing, "what affects the honor and standing of one member, affects the honor and standing of the entire profession." Physicians felt a duty to protect the profession from such transgressions as homeopathy and Thomsonianism, but also against patients and their lawyers. The editors continued, "There is certainly no question but that an organized effort on the part of the profession will have a tendency to deter blackmailers from bringing suits and will discourage pettifogging lawyers from working up such practice among the ignorant or dishonest classes. The public, too, will obtain a different impression as to the motives that usually institute such suits." The editors do not distinguish between blackmailers and legitimate plaintiffs. There is no mention of justified suits, only of "pettifogging lawyers," "blackmailers," and the "dishonest classes." As the suits became more frequent, physicians argued that the increase resulted from dishonest patients and greedy lawyers. No other possible factors such as the increasing expectations of the public for the profession, greater professional standardization, the profession's own claims, an increase in the population, or an increase in the physicians per capita were ever used to determine why suits might be increasing. The profession responded by circling the wagons. Physicians were unwilling to look within their own ranks for poor physicians, and refused to admit that during the course of a physician's life it would be possible, even likely, for him to make a serious mistake. From the opening of the century, physicians argued that no mistakes are made, and that all suits are the result of blackmail schemes. JAMA's editors concluded, "An organized defense is the only way of meeting the rapidly growing number of blackmailing threats and alleged malpractice suits."72 For the medical profession there was no malpractice, only alleged malpractice. Clearly there were both unscrupulous patients, as well as pettifogging lawyers, but there were also negligent physicians. In the case of Lathrop v. Flood73, the defendant physician was employed to attend the plaintiff during her first birthing. He took charge of the case and when the evening of the delivery came at one point he deemed it proper to begin to employ instruments to aid the delivery of the child. Seeing these surgical tools the plaintiff shrank back and screamed, compelling the defendant to drop them. Eventually due to her screaming he resigned the case and walked out. The husband followed him into the street, imploring him to return, and not to leave his wife in

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that condition. The doctor refused. The husband told the court, "The doctor's reply was in substance that the woman screamed, and he was not used to working for women that screamed. The doctor also said that there were plenty of doctors around and that I could go to the German hospital."74 After about an hour the husband was able to secure another physician who found that she was not so advanced in the birth to need instruments, and six or eight hours later, with his aid, he delivered her of an infant which lived about eight minutes. It was demonstrated that the cause of the death of the infant or the infant's injuries was the conduct of the patient in moving and shrinking back while the instruments were actually inserted. The lower court's verdict was for the plaintiff. The defendant appealed the verdict for the plaintiff on the grounds that the verdict of $2000 was excessive. The appeals court ruled that the Dr. Flood's care was not only negligent, but amounted "well nigh to brutality," and the Supreme Court affirmed this judgment. Physicians were caught between a rock and a hard place. They wanted to defend themselves and their profession against charges of negligence, but they also wanted to gain respect from their community. Wisely, physicians realized that if there is a perception that patients can sue physicians and win, then more patients will be induced to sue their physicians. This makes simple economic sense: money is a great motivator. But beyond mere financial implications of suits, there is the larger problem of the community's perspective of the physician.

Conclusion Pike v. Honsinger is the case through which all other malpractice cases may be judged for most of the 20th century. The court laid out a framework which pushed malpractice cases to be tried as tort cases in which physician negligence, not breech of contract, was the significant issue. In doing so, the court provided a vital protection for physicians: they would be held to the standard of care of the physicians in their local community, and only other physicians could determine what that standard was. While nineteenth century medicine had been heterogeneously practiced, locally focused and largely unregulated, the Pike court moved to create homogeneity - though only homogeneity within a given community. The local focus would remain, and in fact, the Pike decision would even place greater emphasis on that local

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focus. While medical educators and professional associations would work towards creating a national profession, the Pike decision created a legal environment in which national standards of care were not necessary. It would be decades before the courts would consider leaning toward the idea of a national standard, and they would do so only of our exasperation with physician's who did everything to protect their local brethren from damages in suit. New technologies would improve care, but again, they would only be seen as the care standard if other physicians in the locality agreed that they were such. They did provide palpable evidence of care - the x-ray film, the EKG tape which could be used both to defend and to implicate physicians. These technologies provided a record of what happened to the patient independent of the testimony of the parties involved.

CHAPTER 2:

Building a Defense

A Growing Awareness of Suits The slow, but steady, rise of suits during the first three decades of the century did not go unnoticed by physicians, and articles relating to malpractice began to appear in medical journals. Many of these articles simply defined some of the legal aspects of malpractice, while others focused on specific topics such as malpractice in surgery or the need for insurance. The leaders of the professional associations realized the possibility (and perhaps necessity) of fighting malpractice suits aggressively and with a united front. While physicians attempted a united front, they continued to testify against one another as expert witnesses. None wrote of this experience, though many published accounts of witnessing for the defense, in attempts to instruct other physicians how to be more effective defenders of their brethren. Physicians now also advised how to avoid malpractice, and even brought in lawyers to teach doctors how to escape suits. Simultaneously, malpractice cases became increasingly sophisticated. Lawyers found new and more sophisticated ways to argue suits, and the courts more clearly defined some standards of care; specifically in-patient consent and the use of technology. One new technology, the x-ray, stood out as both a symbol of technical achievement and competence and a source of new problems for physicians. Doctors could be sued both for failing to take an x-ray, and for using the x-ray in therapy. Four things standout in the early decades of the century. First the societies viewed malpractice as a threat that required a unified front for defense, while individual physicians sought to protect themselves in ways which opposed the society’s means. Second a significant clinical discovery, the x-ray, had a marked effect on suits: less from its improvements to clinical care than from its ability to produce a film 33

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record. Third, medical journals became a source for information on how to avoid suits, and rarely did these articles mention the clinical practice of medicine or the standard. The focus was consistently on interactions with the patient, and record-keeping. Finally, the failure of the united front, the x-ray record, and attempts to avoid suits brought the role of the expert witness to the forefront.

Medical Societies Offer Medical Defense Physicians never knew when a patient might sue, and few were financially prepared to engage defense attorney, or pay a settlement or award. While medical journal articles warned against suits and scolded loose-lipped doctors, a truly effective defense against suits required more organization. Early in the century medical societies organized ways to provide services to members who had been sued. Initially they abhorred liability insurance, but in the end, pressure from the ranks of physicians forced these societies to reverse course. In 1901 the New York State Medical Society became the first to put forth a medical defense proposal to its members.75 Over the course of the next year the proposal was debated and ultimately passed.76 The "Associated Medical Defense," went beyond asking doctors to refrain from making negative comments about fellow physicians: it provided a blueprint for an organized defense process in which a physician who had received a threat of suit would immediately send "the letter, process of courts, or other evidence of threatened litigation to the secretary of the Medical Society of the State of New York." If the physician was a dues paying member then his letter would be forwarded to the counsel of the medical society, and an application for defense would be returned to the physician.77 All members of the society were entitled to free representation by the society's counsel. This free counsel was not only a service of the medical defense program, it was also a requirement. The applying physician gave the society's attorney "sole power to conduct the defense thereof, and [agreed] not to compromise or settle said claim for damages for said alleged malpractice without the consent of the Medical Society or its attorney." Initially the leadership of the society believed that their strength came from never settling cases. Physician unwillingness to confront medical error pigeonholed them into the belief that all suits were caused by blackmailers and unscrupulous lawyers.78 With this as

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its starting premise, the society concluded that only by refusing to ever compromise or settle a claim could suits be stamped out. If the society's counsel could either win or get suits dropped, then there would be no money available for blackmailers and shyster lawyers and the suits would cease. The refusal to accept the possibility of legitimate liability also explains the society's choice to use membership dues to fight suits, and refusal to help members pay judgments. The medical defense act specifically stated that: under no conditions or contingency will the Medical Society of the State of New York pay any sums awarded in settlement, compromise, or by verdict or otherwise against any member sued for alleged malpractice, and each member in applying for the services of the attorney of the Society in any malpractice case, shall agree not to obligate in any manner the Medical Society of the State of New York or any persons connected therewith, to the payment of any sums whatsoever for any purpose.79 The society made it clear that it did not want any plaintiffs to recoup rewards, and perhaps more importantly, in the event that a plaintiff did win a case, the society had no interested in spreading the defendant physician's burden of payment among the members. Although it fully expected its legal counsel to win every case, it was not willing to bet on it. Members had to use the society counsel, and turn the case over to him, but in the event that counsel lost the case, the member paid the judgment. James Taylor Lewis, the Society's counsel (who later wrote the more precise language of the 1906 defense act) spoke before the Society's annual meeting in 1905 and argued that suits damaged the public health. In his capacity as the society's counsel, charged with defending against these suits, he believed in "the direct benefit which such a defense has upon the public health."80 In his explanation he argued that physicians, No matter how satisfactory the result of their operations may be, so far as they are concerned, never feel sure but that with

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Unhealed Wounds the healing of the break or wound some evidence may remain which in the mind of the litigious patient might become a subject for discussion with the shyster lawyer. This fear in the mind of the medical man necessarily stands in the way of his best efforts.81

Lewis argued that physicians, wary of malpractice suits, actually did less for their patients. This would mean that the fear of suits caused physicians to act against their own ethical code. If they chose to do less for a patient out of fear of a suit, then they failed to provide the best possible care to that patient solely because they wished to protect their own interests. Lewis's provided a specific example of how this might happen. He began with an ode to the glories of the x-ray. He then contradicts himself with one sentence, " Even now protection from these rays is uncertain, but the public must be, and of course is, indebted to the medical profession for this great light; yet there will be found those who are willing, under the advice of a shyster lawyer, to prosecute, no matter how careful the surgeon may be."82 Lewis is arguing that surgeons are willing to employ an uncertain device which could severely wound a patient, not because of the likelihood of injury, but because of the fear of suit. If there were no suits, then they would be even more willing to use the dangerous device. After arguing how much happier the physician will be when he is no longer "hampered by the ever-present horror of a malpractice suit," Lewis argued that "the public may expect to receive the benefit of the best judgment of the best minds along the lines of honest and earnest experimentation."83 By definition experimentation cannot meet the standard of care. If a physician is experimenting, then he is not doing what the typical physician in his locality is doing. Contrary to Lewis's intended goal of defending the honorable physician, he created the impression that malpractice suits were absolutely necessary to keep physicians in check. Without malpractice suits, and the concept of the standard of care, Lewis's article revealed the possibility of physicians experimenting upon patients with dangerous and untested new technologies and procedures. Lewis, thrilled with the defense program's success, told his audience that while the number of physicians in the society increased from 1901-1905, the number of suits brought against society members actually decreased.

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He argued that this was the result of the society's medical defense act. He told the group that the public and "shyster lawyers" knew that the full society stood behind every member. In addition to ensuring that no effort would be spared in defense, "shyster lawyers have been given to understand that no money will be paid in a lawsuit." This program, Lewis argued, would soon "stamp out one of the great stumbling blocks in the way of scientific medical and surgical experimentation and thus allow earnest study and practice within limits, to take the place of this ever-present fear in the mind of the medical practitioner of one of the greatest evils with which the medical profession has to deal."84 The society wanted suits stamped out so that physicians could exercise absolute authority over their patients. A physician who wanted to experiment with an untested technique did not want to worry about injuring a patient. Lewis argued that fear of suits prevented physicians from worry free experimentation, and that this was not for the good of society. The medical defense program appealed to many state societies. In 1907 Massachusetts adopted a code virtually identical to New York's. Like New York, the goal was to avoid payment in all cases, and the physician who settled a case without the permission of the society would lose any further chances for use of the society's counsel.85 Within ten years twenty state medical societies had put medical defense acts into place. All required that the physician use the society's counsel for his defense, and none provided for payment of damages. The expenses incurred by the programs varied among the states, and in each state the cost of the program varied from year to year. Between New York's initiation of the first act, and 1914, societies spent between zero and six thousand dollars in any given year. No state spent more than thirty-five hundred dollars annually, with Massachusetts spending an average of 385 dollars annually: a total of about eleven cents per member. None of the state societies ventured into any sort of indemnity plan for members, but virtually all defended their members against suits regardless of the merits of the case.86 The objection to any settlement, and the refusal to pay any damages also extended to an objection to liability insurance. Societies actually hoped to put an end to malpractice suits, and believed that their first step - creating an organized defense of their members - was working. Because we only have data on the suits handled by the

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societies, it is not possible to determine whether or not this sense of accomplishment is correct. Despite the lack of data, there are some reasons to conclude that societies were right in their positive assessment. The organized defense allowed the society's attorney to become singularly expert in the trying of malpractice cases. In an era when a plaintiff's attorney might work on one or two malpractice cases per year, the societies' attorneys were frequently involved in over thirty. In addition, the society expected doctors to appear as defense witnesses at no cost other than expenses.87 This could have a powerful impact on jurors. While the plaintiffs' experts could be exposed as having been hired guns, the defense experts could testify that they had received no compensation.88 Almost all societies believed in their systems to the point that they actively discouraged physicians from obtaining insurance. In their review of medical defense acts members of the Massachusetts Medical Society wrote, Private insurance is not generally encouraged. A few advise protection in damages but not in defense alone. The objections to insurance against verdicts lie in the supposition that it encourages suits for the purpose of obtaining hush money, or settlement without trials. This can be obviated by a restraining clause in the policy.89 The way to avoid the payment of such hush money was to refrain from making payments to plaintiffs as much as possible. No society wanted its physicians settling cases, and in fact, no society wanted its members buying liability insurance, because both signaled to plaintiffs and their lawyers that there was money to be had. The defense acts seemed quite successful. The number of suits appeared to decrease, with members paying very little for the privilege. The Massachusetts Medical Society reviewed its defense operation after ten years and found wonderful results. Not a single judgment had gone to a plaintiff, and the cost to members of the society was only 11 cents per year. The secretary of the society informed the members that of 130 applications that had been sent out to members, only 19 had resulted in suits. He interpreted this as follows,

Building a Defense

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The applicant is told that he may tell the plaintiff's attorney that the case has been placed in the hands of the Society. In the event of threatened suits this has the effect, in a majority of instances, of stopping the proceedings, and nothing further is heard of the threat, and is the result in most of the suits that have been already entered, as is shown by the fact that but nineteen suits have been actually placed in the hands of our attorney out of about one-hundred and thirty (1 in 6+). considered [sic].90 This was good news for the council, but within only a few years some drastic changes took place. While only nineteen cases were initiated against members in the seven years between 1908 and 1915, in the next three years seventy-five new cases were brought before the defense committee. Legal costs had averaged $412 per year in the first seven years, but in the last three years costs had skyrocketed to $718 per year. Meanwhile, membership in the society remained stable. Funds for the entire society were short, and some considered discontinuing the medical defense service. Grumbling about the service was not only a result of out of control costs. Society members, fearful of suit, felt a need for insurance, while the leadership strongly opposed insurance. In the last three years of the survey, many members’ insurance companies provided their defense. Most insurance companies had a clause in their malpractice contracts that in the event of a suit, the company would choose the lawyer for the case, most likely its own. This is the first sign that members were actively seeking insurance, despite the warnings of the society. In New York, Lewis was extremely disturbed by this increase in insured members. In 1917 he took the members to task, reporting to the society that insurance companies were now involved in about 20% of the cases he represented, either defending another of the doctors, or defending the society's doctor91. Lewis was fed up. These were leaks in the society's strategy to seal off all possibility of suits. He wrote, I believe it is imperative that the State Society take some decided stand at once with reference to defending members who are making use of insurance policies. These insurance companies receive anywhere from $15.00 to 25.00 a year as

40

Unhealed Wounds premiums, and I am convinced that perhaps 10% of the medical profession of this state is now making use of these policies. Such practice acts in direct opposition to the effort of the State Society.92

Lewis knew that the insurance company’s revenue stream could have been going to the Society. He certainly could have put on a more vigorous defense if his office was getting a $20 annual fee from members. In addition, he was angry with the 10% of physicians who purchased insurance and ruined the scheme for the society. These physicians had chosen to look out for their own best interests rather than aid the profession. Lewis' warnings included a tale of dire consequences for sued physicians. He wrote, The profession has not yet realized the danger of these policies. When a doctor is once defended by an insurance company, his policy may be promptly canceled, all other insurance companies notified that he has been sued and recovery against him (sic); if that is so, he may not be asked again to take a policy, and then he will be left in the predicament of having lost a case and in the unenviable plight, should an accident befall him, of having the question asked him of how many times he had been sued for malpractice and how many times recovery had been against him.93 After telling the members that one suit against a physician could prevent him from obtaining insurance in the future, and could lead to more recoveries from all physicians, Lewis pointed out that no insurance company had a lawyer as skilled as he in defending cases, yet most required the use of their own counsel. The member could be caught between Scylla and Charybdis: on the one hand losing a case when the jury discovered he had insurance, or on the other, canceling his policy and risking the possibility that Lewis might lose the suit, requiring the doctor to pay the judgment. In some ways Lewis could count himself lucky. While his members continued to buy insurance, they also remained supportive of the medical defense act. The same could not be said for other state societies. For some the idea that the entire membership would bear the

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burden of defending the few who were sued did not make sense. Defending physicians from malpractice suits was a costly business, and some societies had trouble affording it. Even Massachusetts, a relatively wealthy state with an active membership in its society, was having difficulty keeping its medical defense activities afloat. By 1918, after ten years of consistent success, there was a movement to cut the medical defense operation as part of an austerity program. Members had become remiss in paying their dues to the Society, and there was little likelihood that there would be enough funds to cover the annual expense for defense, which had risen to over $1000. George W. Gay, the Society's counsel, recommended that no new cases be accepted for the year, and registered his displeasure with the membership in the last paragraph of his report. After noting that no state society had ever discontinued its defense activities he wrote, In closing this report, may the writer be permitted to say that the members of this Society can no longer complain that the only asset they receive from their membership is an annual dinner? Aside from the camaraderie, which is no trifle, and the standing in the community and in our courts attaching to membership in the Society, they receive one of the best medical journals in the country and, for ten years, they have had the privilege of a mutual insurance company’s service in suits for alleged malpractice. Surely this can hardly be considered a limited or one-sided contract. On the contrary, it would seem to be a fair, if not generous return for the annual dues and to justify a membership of five-thousand rather than one of thirty-six hundred.94 Within a few years the Massachusetts Society had restructured its organization, improved its financial picture, and allowed George Gay to continue defending physicians. In New York, Lewis continued to speak out against malpractice insurance. In his 1918 report he warned that the public was beginning to think that the state society insured all of its members, and therefore juries would assume the same. Lewis tried a different appeal to convince members that insurance was wrong. He wrote,

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Unhealed Wounds The members of the State Society should stop to think that in the last twenty years but four verdicts have been sustained, and if those verdicts had been paid in full they would have aggregated not more than $8000, and then consider that if the membership of the State Society had paid the lowest insurance rate for which a policy is written in that same period of time, there would have been paid in insurance premiums by the membership of the Society, $1,600,000. Is it any wonder that the insurance companies are doing their best to secure policies from doctors? Is it any wonder that they want to get County Societies or local communities of doctors to take community insurance?95

Lewis pointed out that the Society could more than adequately insure each member for only a dollar, as opposed to the insurance rates of $10 to $25, but repeated his assertion that insurance would lead to verdicts against physicians. He reported on two physicians who had been tried together for the same case. He represented one while the other was represented by an insurance company. The jury exonerated Lewis' client, but held the insurance company's client liable for $7500. In his last report as the counsel to the New York State Society, Lewis's exasperation with members purchasing private insurance is evident. Lewis wrote, "These policies are a very serious menace," and he added a new refrain in his annual attempt to persuade members to stay away from insurance. "I have always contended that the money phase of a malpractice case is of the slightest moment," he wrote, "but that the reputation of the doctor is of the greatest importance... An insurance company has no interest in the professional reputation of a defendant doctor. 'Get rid of the case as cheaply as possible' is their prime motive."96 Physicians did not write about the reasons they chose to purchase malpractice insurance. We know that salesmen called on these physicians and urged them to buy the insurance, and we can only speculate that these salesmen were more persuasive than Lewis and the leaders of the Society.

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Private Malpractice Insurance While the New York Society, among many others, was opposed to physicians purchasing malpractice insurance, there were experts on malpractice who spoke out in favor of insurance, including I.S. Trostler, the Chicago radiologist who wrote more articles on malpractice than any other physician during the first half of the century. While he continued to complain that the contingency system attracted the worst sort of lawyer, and he joined other physicians in disparaging ungrateful patients and rumor generating doctors, Trostler was one of the few figures who publicly recommended that physicians buy insurance. He mentioned it in several of his articles, and occasionally focused exclusively on the topic. Trostler was always particularly interested in the plight of his fellow radiologists, and pointed out that through 1930 the biggest awards and largest number of cases had occurred from fracture treatment and x-ray burns. He told the story of a man with a needle in his foot who required an x-ray. When an ulcer developed on his foot, which according to Trostler was the result of an infection from the needle, the patient sued and was awarded $15,000 dollars by a jury. Trostler cited the case to demonstrate how juries are predisposed to awarding damages for x-ray burns.97 Because such suits could come "just like a bolt of lightning from the clear blue sky,"98 Trostler recommended insurance for all physicians. He told his fellow radiologists, "[I]nsurance against indemnity guarantee for malpractice lawsuits is almost as necessary as is a license to practice."99 At the same time, he warned against two seemingly effective insurance plans: reciprocal insurance and group insurance. Reciprocal insurance is quite different from traditional insurance, because the insured physicians function much like shareholders. In the event of a suit they are liable "jointly and severally." In other words, unlike a traditional insurance plan in which the company is liable to pay the award, in the reciprocal plan every paying the physician is liable. If the award went beyond the amount pooled from dues, then the plaintiff could go after the money of the member physicians collectively and individually. Trostler advised physicians to purchase plans from a traditional, and well-known and trusted insurer. He

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understood that physicians felt cheated by insurance companies, but he reminded them that "Insurance is a business, just the same as selling shoes or groceries or running a bank. Men who are in that business figure out what it costs to insure us. They know what it costs and they are not going to charge us more than a reasonable profit. They cannot afford to overcharge us because there is competition."100 In group insurance the insurance company would negotiate a rate for a group of physicians. The group could consist of members of a society, a practice, or even a specialty. Although group plans were very attractive to physicians who sought adequate coverage at a low rate, Trostler objected because the typical group plan required member physicians to testify on behalf of their fellow group members in the event of a suit. This is similar to the medical defense initiatives of the societies in which members of the society provided free expert testimony to their fellow members. When applying for insurance the member of the group would be required to sign a form stating that he would give expert testimony for fellow members of the group. Trostler pointed out that the insured group ran a risk because "If any attorney upon finding that the witness under examination was one of such a group, would merely introduce this form, even if it were not admitted as an exhibit in evidence, and thereby inject the insurance question into the case, it would most certainly play havoc with the credibility of the medical expert witness."101 While lawyers could not bring the fact that the defendant was insured into trials, they could bring up the fact that there was an incentive for the expert witness which could prejudice his testimony. Showing the form would do this, and it would bring the defendant's insurance status in through the back door. Juries typically awarded insured defendants more than uninsured defendants. Even without the backdoor admission juries often knew that an insurance company was involved. Some, like the New York State Medical Society's legal counsel Lewis argued that it was because the insurance company brought in its own lawyers. Even if we cannot be sure that juries knew that defendant's were insured, there is good evidence to show that they often required greater reparations from insured defendants. One of the most dramatic demonstrations of this is tabulated in a 1931 study by the Radiological Society of North America. The society sent out 1000 questionnaires to its members. 528 were returned. Those returning questionnaires reported 38 suits filed, tried and won, 20 lost, and 22 settled out of court. The total amount paid out from jury awards was

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$120,095. Insurance companies and the insured physician paid out $112,275 for 23 cases, averaging $4882 per case. Uninsured physicians paid a total of $7800 in 15 cases, or $520 per case.102 Lewis's arguments appear justified by these numbers, despite Trostler's exhortations for insurance. Despite this information, malpractice insurance continued to attract physicians.103 The primary reason physicians chose to purchase liability insurance was the increasing likelihood they would be sued. In 1930 the Nebraska Legal Defense Committee used its experience, combined with a questionnaire to members of the Nebraska State Medical Association to determine that from 1920 to 1930 the number of cases in Nebraska had risen 500%. The Chairman of the Committee told members that "This is an insurance age. Nearly everyone carries liability insurance of some kind, and many physicians carry malpractice insurance." Back in New York State, by 1930 nearly 70% of the association’s members were insured. The numbers had grown dramatically once the Association reversed its policy and chose to negotiate with insurers to obtain a group policy for its members.104

Societies Offer Malpractice Insurance Medical societies were pushed by the changing sentiments of members. In 1921, the New York State Medical Society, the first to initiate medical defense, also became the first to institute a group liability policy for its members. A new counsel for the society, George Whiteside, took over on September 1, 1920, and received a backlog of fifty-seven cases from his predecessor. Between September 1 and April 1 Whiteside received twenty-seven new cases while disposing of only twenty. The result was an accumulation of new cases at an ever increasing ratio. Whiteside was well aware of the first significant problem resulting from this increasing backlog: physicians who had cases brought against them were made increasingly uncomfortable by the wait. Whiteside wrote, It is both undesirable and annoying to the individual physicians who are sued to have their cases pending undisposed of for a long period, due to these conditions. This

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Unhealed Wounds is the first defect in the legal machinery of the State Society's malpractice defense that requires remedy. With the increased number of cases and the necessity of carrying so large a calendar of undisposed cases, the cost of malpractice defense under present conditions would constantly increase.105

Logically, Whiteside's first step toward reducing the doctors' waiting time would be to reduce the number of cases handled by his office, but in fact, he had a radical new idea for the society which would only increase the number of cases his office defended. Whiteside noted that despite the repeated warnings of the society against obtaining liability insurance, members were voting with their feet, and obtaining policies. When their cases came to trial those cases were handled by the insurance company lawyers. Whiteside believed, probably correctly, that the Society's defense would be more effective than the insurers’. The society counsel had great experience with cases, and the counsel could easily marshal members to appear as witnesses for the defense. The problem created by the members’ flight to insurance was aggravated by the insurance firms losing cases and paying large awards, and thus losing interest in selling medical liability insurance. Physicians, who wanted insurance but felt that the insurance rates were very high, could not understand how insurers failed to make a profit from malpractice insurance. There are several reasons for the difficulty, the most significant being that cases frequently occur long after the insurance rate has been calculated and paid. 106 During the early years of insurance, a lack of experience with the product led many companies to discover they had been charging far too little, and these insurers got out of the medical liability business, or went bankrupt because of losses from this one line. Whiteside, in his letter to the House of Delegates to the New York Medical Society, noted that, " increasing hazards in the practice of medicine have caused a number of insurance companies to discontinue writing physicians' and surgeons' liability insurance, and that the few remaining companies have or will surely announce an increase in their rates of upwards of two hundred to three hundred per cent."107 Whiteside suggested that the Society negotiate with a single insurer to gain a group rate for members, which would also allow the Society's counsel to defend members who incurred suit. He understood

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the significance of the change he was calling for when he told the delegates, "This plan is radically different from anything that has heretofore existed, in that it is entirely optional with the members whether they will take the indemnity feature, or not..."108 One year after becoming Society counsel, Whiteside acted in direct opposition to his predecessor. He not only advocated insurance, he suggested that the Society itself organize, negotiate, and back the insurance plan. Nevertheless, the plan maintained many of the features the society required. The member would be defended by the society's counsel, and therefore, the plaintiff would not become aware of the fact that the physician was insured "By reason of the participation of the insurance company and its representative in the defense."109 The initial policy was purchased from the Aetna Insurance Company at a cost of $18 dollars per year, for up to $5000 in damages in one case, and $15,000 for the policy year. Whiteside argued that it would be best if every member signed on for the insurance, because the more people who signed on, the more quickly he could work through his backlog of cases. The insurance company would not only allow the Society counsel to defend the insured member, it would pay for the defense as well. Whiteside told the delegates, While the operation of this plan may not result in an immediate reduction of the cost of malpractice defense work of the Society, due to the necessity of disposing of the present pending calendar of sixty-four cases, it is very evident that if a majority of the members of the Society desire the indemnity feature in addition to the Society's malpractice defense, that a larger proportion of the expense for malpractice defense of such members will fall upon the insurance company, thereby correspondingly reducing the expense to the Society, that if alternately the Society's membership should be all insured under this plan their would be practically no expense for legal defense in malpractice cases that would not the borne by the Insurance Company, and the Society thereby could procure a larger portion of counsel's time in other branches of the Society's activities.110

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Whiteside would be able to handle cases more quickly because the insurance company would provide him with the funds necessary to increase his staff. Nevertheless there was a problem. The society had been providing medical defense as a part of the members’ dues. Now each member would be paying an additional $18 per year. Nevertheless members had been willing to pay for insurance, and now they would also be able to have their own counsel defend them. The House of Delegates ratified the plan to purchase a group policy with Aetna insurance, and the success of the plan came rapidly. Within one year 30% of the members of the society were in the plan. The following year forty percent of the membership enrolled. Perhaps more importantly in terms of Whiteside's arguments for the financial soundness of the plan, in the second year of experience with the group plan, nearly 75% of the members who were sued were in the plan, drastically reducing the costs of medical defense for the society. At the opening of the century, the Society held firm to the position that insurance would lead to a greater number of suits, arguing that unscrupulous patients and shyster lawyers, once having discovered that a physician had an insurance company who could pay up on his behalf, would be more likely to sue. Juries, sympathizing with a wounded patient, would be more likely to side with the plaintiff when they knew that the award would not come from the doctor's pockets. Although there was little or no evidence of either of these effects, (and in the latter case informing a jury of the doctor's insurance status would result in a mistrial) the Society remained opposed to insurance on principle. Perhaps this is further evidence of physicians' reluctance to admit that mistakes do occur. Despite the leadership's warnings, individual physicians saw the wisdom of insuring themselves against such suits. We can make some speculations on why this might have been the case. These physicians were small business owners. Most likely they had life insurance, home owners' insurance, office insurance, and, in many cases, automobile insurance. They saw the cost of insurance as part of the cost of business. Knowing that suits occurred these physicians could buy piece of mind with the purchase of some insurance. They could treat patients in the manner they thought best with less worry about a suit, because they knew that in the event of a suit, both their attorney's fees, and any cost of judgment would be paid for. Because members of the society, against the organizations’ warnings, chose to purchase insurance, the leaders of the Society

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became convinced that the only way in which to salvage the medical defense was to give in to these members’ wishes and organize a group insurance plan. This group insurance meshed well with the idea of the medical defense. It continued the practice of having all of the member’s cases handled by the society counsel, making him perhaps the most expert at trying and defending malpractice cases. In addition, it created greater funds for the purpose. Where previously the funds had come from members’ dues, now the members’ dues could be put to other uses, while the physicians paid separately for their medical insurance, and thus their medical defense. Finally the dangers warned of by Trostler, unscrupulous plans and damaging medical testimonies, could be avoided. In 1943 the Committee on Malpractice Defense and Insurance of the Medical Society of New York, the successor to the Medical Defense Committee, prepared an historical review of the 22 years since the group insurance plan was put into place. Over 3500 suits had been handled jointly by the society council and the insurance firm. The committee had remained committed to the original goal of maintaining low rates for the membership, and in 1935 it had ended its relationship with Aetna in favor of a less expensive contract with Yorkshire Indemnity Company. The Society's counsel continued to handle all cases, and to issue policies only to members in good standing. The insurance company continued to provide insurance on a cost-plus basis.111 In a historical review of the previous twenty-two years the committee managed to gloss over the fact that George Whiteside completely reversed the Society's policy created by James Taylor Lewis. In the review neither is mentioned, and instead the leadership of the society is credited with a careful watch of the rise of suits "fully appreciating the nature of the danger that lay ahead. They foresaw that unless some strong and positive action was taken, to unite all available defense elements into a solid front, medical men would shortly become ready targets for every damage- chasing lawyer who could get to their patients."112 Then, according to the review, the society led the members out of the error of their ways into the light of malpractice insurance. The society's group insurance created new problems. Most significantly, the number of claims and the cost of disposing them had increased more rapidly than anyone had expected. Perhaps James

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Taylor Lewis had been right: malpractice insurance was a Pandora's Box waiting to be opened by plaintiff's attorneys. Once it was clear that there was money to be had, and juries perceived that the suffering of the plaintiff could be ameliorated at no cost to the doctor, little stood in the way of more suits and larger awards. There is no way in which this can be measured or proven (correlation does not prove causation), yet the fact remains that once the Society bought into insurance, the cost of suits rose at an alarming rate. Yorkshire, which had taken over the contract in 1936, calculated the costs of suits between 1936 and 1949. During those years every member of the Society had paid $12.79 less for his insurance than it had cost to insure him for those years. Yorkshire was losing a tremendous amount of money on malpractice insurance, and it decided to end its relationship with the society in 1949. Employers Mutual took over the policy, but 6 years later in 1955, the company reported estimated losses of 2.5 million dollars. These insurers succeeded in other areas of insurance by their ability to calculate future costs of providing people with auto, life, home and liability insurance. With malpractice, even these sophisticated actuarial specialists could not accurately predict the increases in damages and awards. The Society sought to continue working with Employers Mutual, working out a new rate schedule, and believing that malpractice awards would cease to increase in number and severity. The Committee reported that the experience of 1954-6 "indicates that for the time being at least we may have reached a leveling off plateau. Whether we go on from here to still higher points in the future or start on a downward course is completely in the hands of the practicing members of the Society and the extent to which we guard every act, every word, every record of every patient every day."113 The needs of the individual physicians were beginning to get ahead of the plans of the society once again however. Just as in the second decade of the century, when James Lewis was warning physicians not to obtain insurance, and they did not heed him, in the late 1950s the Society warned physicians not to obtain insurance other than the group insurance negotiated by the Society. The Committee was very concerned about one insurer in particular, Lloyds of London. When the Committee broke down the number of physicians insured under the group plan by county, it discovered that the number physicians practicing in the more rural counties in upstate New York who participated in the plan was increasing, while the participation of

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physicians in the downstate metropolitan counties of New York was decreasing at such a rate that there was a net loss of 1,795 members in the plan in 1955. The Committee reported that "The decrease in the metropolitan area was due almost entirely to members who transferred their insurance to Lloyds of London."114 The fear of the society, and of the Insurance Superintendent of the State of New York, was that Lloyds, an unlicensed insurer, would lure enough physicians away from the plan to cause it to collapse, and would then would pick and choose which physicians it would insure, and insure them at a higher rate. Most astonishingly, the fact that Lloyds was not a licensed insurer made it illegal for them to solicit or accept malpractice insurance in New York State, and the state had issued both a cease and desist order to Lloyds and a public warning to state residents to not purchase insurance from unlicensed companies. Nevertheless, members of the society, literally thousands of them, chose to go against the society's plan, and even against state regulations in order to purchase cheaper insurance. By 1920 the Society had learned that physicians would rather protect their individual assets than participate in the society's plan to end suits. In the 1950s, physicians demonstrated that they would rather save money on their own insurance bills than participate in the society's group plan. By opting for the cheaper insurance they not only lost the right to the society counsel, they also repudiated a system which was already so inexpensive to the physicians that three different insurance companies had failed to profit from the malpractice plan. The story of societies out of touch with the needs of their members will be repeated throughout the century. Physicians do not find the threat of malpractice as terrifying as the societies, and in this case, they simply recognize the need for insurance. At the same time the societies were building themselves up against malpractice, a significant clinical development - the x-ray - would increase malpractice suits. But it was not the clinical initiative that truly had an effect on suits. Rather, it was the fact that the x-ray produced a record of the physician's basis for diagnosis. That record could be interpreted by later physicians, and for the first time they could make a medical judgment based on the same evidence as attending physician. The x-ray film would change the role of medical records and expert witnesses, and change the nature of the advice to physicians regarding avoidance of malpractice.

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The X-Ray In Medicine and the Reign of Technology, Stanley Joel Reiser reviews the history of medical technology in order to discover how developments in technology have altered the physician-patient relationship.115 He contends that technological improvements have separated the physician from his patient. For centuries physicians had made their diagnoses based on the patient's narrative of his symptoms, but in the nineteenth century physicians found ways to peer into the body to learn for themselves what the symptoms were. Auscultation, the stethoscope, the laryngoscope, the microscope, the thermometer, and later the x-ray, the electrocardiograph and the sonogram provided windows into the body which enabled physicians to bypass the patient's own conception of his illness. In the twentieth century, these diagnostic tools presented a new problem for physicians. As measurable statistical data were introduced, increased attention could be paid to errors and malpractice in medicine. Patients and the courts would come to expect doctors to employ the technology. Physicians who did not employ the technology and provided a less than perfect result would run the risk of being sued and of losing the suit. Aside from the scopes (microscope, stethoscope, opthalmascope, and laryngoscope) and meters (spirometer, sphygmometer, and thermometer) available to the physician, there were also new laboratory tests. Paul Ehrlich had developed the diazo reaction to determine the presence of typhoid fever, and he had worked on the tests for white blood cells indicating infection in body. But these diagnostic technologies left few traces in the courts. The x-ray is the first clear example of a technological innovation dramatically effecting malpractice suits. Although it was not the first highly successful diagnostic technology - auscultation could diagnose active TB, the laryngoscope could diagnose a variety of throat ailments - it was the first technology that could create a permanent record of its results. Because fracture treatment was well-developed, the technology was an improvement in fracture diagnosis only at the margins, but was a tangible diagnosis: the film produced by an x-ray allowed other physicians to comment on how treatment should have gone as if they had been there themselves. In addition, the x-ray was a diagnostic

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technology that could be used to improve outcomes of therapy as it progressed as well. A physician could use the x-ray to diagnose a fractured ulna, then set the arm in a cast, and then x-ray the arm again to determine if he had set it properly. The first successful diagnostic x-ray in North America was performed in February 1896, by F. Konig Frost, a professor of astronomy at Dartmouth, who successfully photographed a fractured ulna. By the end of that year x-ray photography had been used to diagnose tuberculosis of the lungs, to examine a fetus in utero, to detect gallstones, kidney and bladder stones, to find tumors of the lung and stomach and to find evidence of arteriosclerosis from an x-ray of the aorta and coronary arteries. Chemicals injected into the soft tissues enabled them to be studied. Within two years Walter Cannon, professor of physiology of Harvard Medical School had been able to elucidate the physiology of the intestinal tract using the x-ray and bismuth subnitrate.116 At the opening of the century the x-ray was a new technology waiting to be exploited. In 1900 an x-ray machine cost less than $50, making them readily available to hospitals and prosperous surgeons. Not every hospital or physician could obtain one, but the standard of care began to change. A slow increase in malpractice suits occurred simultaneous with the increasing availability of the machine and suits against surgeons for failing to take an x-ray of a fracture were most common. Tales of people falling off of horses, getting caught in machines, and being hit by automobiles, who then traveled to the doctor only to be told that they had a severe bruise fill medical casebooks. Then some weeks or months later an x-ray is finally taken, showing a fracture, which has now healed leaving one leg shorter than another, or causing a permanent limp. The sense that there was a need to x-ray did not take hold overnight, and it occurred in urban areas before rural areas. The x-ray required a substantial amount of consistent electricity, so while the machines were common, the use of the machine could be limited. The Washington State Supreme Court ruling on a case in which the injury and diagnosis had occurred in 1905 determined that in fact the physician was not negligent simply for failing to x-ray a fracture. The court argued that it was the jury who must decide if it was negligent to

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not x-ray, writing, "It is not negligent if diagnosis can be made without it” and there was no negligence in failing to have a machine in the office.117 Physicians also discovered multiple reasons to move from simple fluoroscopes, which allowed a physician to see into the body, but produced no photographic hard copy, to x-ray plates. First, fluoroscopes increased the likelihood of over-exposure, because the patient would stand for several minutes while the machine bombarded him with rays. Second, the fluoroscope did not allow the physician to review the image himself, or with others. Finally, without a photographic hard copy, the physician had no evidence as to the patient's condition at the time of diagnosis. These latter problems are in evidence in the first x-ray case to reach appeal in the United States, the Washington case of Wells v. Ferry-Baker Lumber Co. from 1910. Interestingly, this case comes not from one of the urban centers, but from a rural area. One reason for this is the presence of what is in essence a company physician. On October 21 1907, Wells, while engaged in the discharge of his duties as a daywatchman at the defendant's mill, fell from the conveyor onto a platform - a distance of about 10 feet - and sustained serious injuries. The lumber company exacted and withheld from the wages of each of its employees, including Wells, the sum of $1 per month, which it paid to a physician and surgeon of its selection for professional services. The evidence discloses that the surgeon at first expressed the opinion that both arms were broken, but then examined them with the X-ray. He made a fluoroscopic x-ray examination (with no picture taken for his diagnosis) and determined the right wrist was fractured but that the left wrist was sprained. The appellant continued to complain of pain in his left wrist and said that it was worse than a sprain. The physician took further x-rays, but continued to treat it as a sprain. Ultimately, 17 months after the injury, a new physician took x-ray photographs of the left wrist, which he said showed a fracture, and this was the cause for the deformity of the left wrist. As for expert testimony, one surgeon testified that an x-ray photograph should have been taken, but stated that he had practiced his profession for a period of 20 years and that he had never had an x-ray machine. Another surgeon said that the x-ray was used only as a matter of extreme care. The Supreme Court ruled that the company was responsible only to provide a competent physician and surgeon. Having done so it had discharged its full legal obligation.118

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While courts came to regard failure to take an x-ray as a failure to diagnose, they did so slowly, largely because practice differed so significantly from locality to locality. If the physician diagnosed and treated a fracture adequately, there would be no case. The diagnosis and treatment needed to be insufficient for a case to arise. In a 1918 case, a physician diagnosed a woman who had fallen as having sustained a bruised leg, but no fracture. The woman was in bed for 4 weeks, on crutches for 18 months, and finally had to use a cane for the rest of her life. Five years after the injury another physician x-rayed the leg and discovered that there had been a fracture of the neck of the femur. This discovery of a misdiagnosis - one that the physician would not have been accused of without the x-ray - is what allowed the woman to sue, and collect $1500.119 The attorney for the Iowa State Medical Society informed its membership that since 1900 there had been 175 claims brought against members, of which 75 were fracture cases. He pointed out that every lost judgment resulted from a fracture case, and put forth some of his reasons why this may have been the case. He argued that juries found for plaintiffs because people expect a good result from a fracture case, but do not understand that this good result depends more upon the patient than other cases. In addition the bad result is obvious to the patient and his friends, but they cannot understand how there could be a bad result from what is apparently a simple, and even mechanical operation. Most importantly, he estimated that in 75% of the cases the patient was treated in the home, a less favorable arena of treatment, and one in which it would be impossible to x-ray. He writes, "The surgeon who undertakes a fracture case should be aware that he may be on the way to court."120 Even hospitals in urban areas with access to funding and good electricity did not rush to adopt the x-ray as standard procedure. In 1902 a man who was admitted to the Pennsylvania Hospital unable to walk after having been run over by a horse was given treatment for a broken leg. He was x-rayed 2 and 1/2 weeks after his admittance, indicating that the x-ray was taken out of curiosity rather than out of a sense of diagnostic efficiency.121 What is particularly interesting here is that this hospital was wired for electricity, owned the x-ray apparatus, had a technician who could operate that apparatus, and physicians who

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understood the power of the tool, yet there was no sense that the tool should be employed as part of the standard care of the patient. While a fracture case was a good bet for the plaintiff, juries were not quick to assume that an x-ray was a necessary element of fracture diagnosis and treatment. They needed to be convinced that the x-ray was part of the local standard of care. But fracture cases were typically the ones which developed into malpractice suits. In 1921 Leslie Childs wrote in the Journal of the Kansas Medical Society, Alleged failure to diagnose fracture or dislocation has been the starting point of a considerable number of damage suits against physicians and surgeons. In fact, this particular phase of alleged malpractice has been so thoroughly thrashed over in court rooms that a reading of the reports on cases of this kind would tend to qualify even a truck driver as an expert on dislocations and fractures.122 Between 1900 and 1920 the expectation that an x-ray would be taken began to set in. Hospitals gradually increased the rapidity with which an admitted patient received an x-ray. The Pennsylvania Hospital typically x-rayed fracture patients 5 days after they had been admitted to the hospital in 1900. By 1909 the patient was x-rayed on the day following his admission, and by 1925 all fracture patients were x-rayed on the day of admission. The New York Hospital also sped up its use of the x-ray, although by 1920 it still took a fracture patient 2 days to get an x-ray.123 It took 25 years for x-ray to become standard in fracture diagnosis, and even then plenty of physicians continued to fail to take one. Care was far from homogenous. The boundary of the legal care standard moved forward despite continued heterogeneity of practice among physicians. Once the value of the x-ray was fully recognized both by the courts and by physicians within a given locality, it became clear that correct continued treatment frequently required further x-rays. By 1933, when Edward C. Banker, a physician in Akron, Ohio, treated Amanda Kuhn for an intra-capsular fracture of the neck of the left femur, Akron standard was to x-ray such a patient. Banker x-rayed the injury on the day he first saw Kuhn, 5 days later, and again two weeks later. He saw that the injury continued to heal following his treatment program. She was then allowed to return home from the hospital, and her leg was kept in a splint for about two

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weeks. Banker then visited Kuhn in her home, checked the leg's mobility by twisting it and discovered the motion caused Kuhn considered pain. He then watched as she tried walking on crutches which also caused severe pain. A few days later Banker returned and told Kuhn to begin walking or else the leg would stiffen. She made an attempt and "as she did so exclaimed, ' My God, my hip isn't together, I can feel it grating.'" The defendant came to the plaintiff's house many times after this to treat her husband's rheumatism, and each time told her she was crazy to think that bones in her hip were grating together. He recommended walking and hot baths. She finally went to the Akron Clinic and had an x-ray of the hip taken which showed that the hip was also broken and that the parts had not united.124 In localities in which x-ray was adopted physicians discovered that taking one could have negative consequences as well. This was a powerful new tool, often placed in completely inexperienced and untrained hands. It took decades before states determined how to license the use of the machine, and so anyone could purchase, operate, and aim the x-ray at patients. The first x-ray appeals case in the United States, tried before the Minnesota Supreme Court in 1904, was Henslin v. Wheaton. Henslin had the extremely unsettling notion that he had inhaled a gold tooth, and having read about the remarkable abilities of the x-ray, he traveled to his physician to have one. Following an x-ray which failed to show any evidence of the tooth, Henslin noticed x-ray burns on his back. His mental discomfort over the thought of a gold tooth in his stomach had been replaced by the physical pain of x-ray burns along with the persistent flaking off of skin that frequently results. At the trial the plaintiff employed a professor of physics as his expert witness.125 The trial court ruled that this testimony was inadmissible as allopaths must be tried by allopaths. The standard of care for physicians is a matter which only other physicians can testify to. On appeal by Henslin the Minnesota Supreme Court ruled that this ruling was in error. The court wrote "[X-rays] may be applied by any person with the requisite scientific knowledge of its properties and there would seem to be no reason why its application the human body may not be explained by any person who understands it."126 This is an important moment in standard of care arguments. The court has seen something that is not knowledge particular to the world of medicine. It is an unusual ruling because while it is clear that the physics of the x-

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ray can be explained by a physicist, it is not so clear that a physicist would be an expert in how the rays would affect the body. One would expect that a pathologist or some other physician who had seen the results of the burns would have to be brought in. Two decades later the court appears to continue to be of the same mind about x-rays not quite falling inside the control of the medical profession. In the 1930 decision in Holt v. Ten Broeck, a patient sued a physician's assistant who had caused a severe burn during an x-ray examination. Again the court ruled that this type of malpractice can be determined by a standard of care not limited to physicians, writing, "In determining negligence it can make no difference whether the one operating the machine is a physician or a lay expert. The care required is ordinary care. It is the care exercised by and to be expected from one reasonably skilled in the use of the appliance. The rays were not applied for curative purposes, but to obtain information."127 Eventually the courts agreed that only physicians could provide expert testimony in x-ray malpractice cases. The courts agreed that physicians are to be held liable for failure to use the x-ray only if expert testimony indicates that the diagnosis required the taking of one. It is not negligence if a successful diagnosis can be made without an xray.128 Nor is it negligence if a physician is practicing in a locality where such machines are not used. For example, a physician located in a rural community where such machines are not commonly available, and where an emergency exists preventing travel to a machine, would not be held liable for failure to x-ray.129 On the other hand, when a machine is available, and proper treatment requires an x-ray to be taken, it is the physician’s duty to take such a picture, without any request required from the patient.130 Note that the locality standard ensures the heterogeneity of practice, so long as some localities had no machines. A lawyer writing to the Michigan Medical Society warned that xray machines' effectiveness and increasing popularity held new dangers. He wrote, Because of the multiplying number of machines sold, and used by doctors, laymen, and practitioners of various cults, many of whom are without training, except for a short period of instruction by the salesman, the actual danger from the x-ray is perhaps even greater that it was a few years ago... Due to the

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fact that X-ray has proven itself to be of untold value in many cases, the laity has learned to request its use.... State laws regulate the sale and administration of drugs but very few states devote any attention to limiting the indiscriminate use of X-ray." 131 As the courts have noted, the x-ray could be administered by anyone, and the results of that could lead to public endangerment. Lobbying by physicians, and by those in the new profession of radiology, eventually led states to proscribe the x-rays use. Simultaneously radiologists organized themselves professionally and successfully pushed for the elimination of lay x-ray laboratories.132 Lay technicians were a constant problem for physicians. Frequently the technician would fail to operate the machine correctly, and under the doctrine of respondeat superior the physician could be sued. In the case of Curley v. McDonald the physician’s assistant x-rayed the patient but failed to check that all was clear before hitting the foot switch that started the machine. The machine was touching the patient's shoulder and the machine sent a major electrical shock through the patient. The court ruled that the machine was not effective and the physician was liable because his assistant should have looked around before starting the machine.133 Another opportunity for error on the part of the technician came from photographing the wrong part of the patient's body. In the case of Welch v. Frisbie Memorial Hospital a physician's assistant improperly x-rayed Marion Welch, who had been injured in an automobile accident on December 5, 1936 in Milton, New Hampshire. Following the accident Ms. Welch was taken to be hospital where she was examined by Dr. Percy C. Grigg, who found her right leg "painful to the touch, swollen and black and blue." Suspicious of fracture, Grigg ordered an x-ray study of the leg. A plate was taken by Eileen Toomey, "a competent laboratory technician employed by the defendant." Miss Toomey's plate did not show the ankle joint. Toomey then made an oral report to Dr. Gray that the x-ray was negative. Acting on the report Grigg treated Welch for a sprain. Three months later after her ankle failed to heal another x-ray was taken revealing a fracture of both bones of the ankle which had reunited in a deformed position. The court ruled

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that the hospital could be held liable for the error on the part of the technician and remanded the case to trial court for a new trial.134 Despite the development of better tubes and safety devices, assistants could wreak devastating havoc when improperly trained or unattended. The following is from a case decided by the Superior Court of Pennsylvania in 1939. The case was originally brought before trial court in 1936. Even at this late date the technician is alarming ignorant. The following is an extensive quote from the courts opinion, There is no dispute as to the facts. Defendant is a practicing physician with offices in the Plymouth Building, University Place, in Pittsburgh. On December 1, 1933, plaintiff, Mrs. Kelly took her young son to defendant's office for an examination and was directed to a waiting room adjoining defendant's x-ray room in the basement of the building. In the waiting room was a Mrs. Hay, a stranger to Mrs. Kelly, who also had brought her infant child for an examination. The xray room and the apparatus were in sole charge of a nurse technician who called Mrs. Hay into the room and placed her child on the table preparatory to making x-ray photographs. Mrs. Hay was holding the child's shoulders, but the child was so restless that the technician in charge called the plaintiff, Mrs. Kelly, into the room and requested her to hold the little child's feet. The table of the x-ray equipment was so close to the wall that Mrs. Kelly had to turn sideways in taking a position between the table and the wall where she was directed to stand. In that position she was in contact with both the wall and the table. When Mrs. Kelly touched the child's feet she discovered that its stockings were wet. She called the attention of the technician to this fact, but was told that it was a matter of no importance. With Mrs. Kelly in that position the technician went to the opposite side of the room and turned on the electrical current. Instantly there was a flash and a spark from the mechanism to Mrs. Kelly's head. The light in the xray machine immediately went out. Mrs. Kelly fell to the floor and apparently struck a cable which was part of the equipment. Her actions were those of one in convulsions. Instructing Mrs. Hay not to touch Mrs. Kelly, the technician went for help and returned with one of the doctors, followed

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shortly by the defendant, Doctor Yount. Mrs. Kelly was then lying in a pool of blood on the floor and was unconscious. The electric spark burned a hole in her hat, caused a burn on her head, and the current presumably passed through her body, coming out at the toe of her left foot, burning a hole through her shoe.135 Safety equipment alone could not prevent such mishaps. Procedures needed to be put into place, and then those procedures needed to be followed up with close inspection and supervision of the x-ray operators. Physicians and hospitals had never been presented with such a task before, and, it took time for institutions to respond to the new challenge, and develop standards for use. By 1930, more than 30 years after its first use, 15 years after it was a well-established diagnostic and therapeutic device, there were effectively no standards for the x-ray's use other than the limited local standards imposed by the courts. The courts became frustrated by the medical profession's failure to develop meaningful standards, even at the local level. While the courts had been traditionally reluctant to apply the doctrine of res ipsa loquitur, or "the thing speaks for itself," in malpractice cases, some courts were willing to apply the standard when x-ray burns resulted from the use of x-ray in diagnosis. In one case a physician burned his patient during the exam. The court ruled that there were three possible causes for the burn: 1. negligence; 2. hypersensitiveness of patient; 3. defects in machine. There was no evidence that the patient was hypersensitive, and the court believed that if there was a defect in the machine it should have appeared in earlier uses, therefore the doctor was guilty of malpractice by res ipsa loquitur.136 In direct contradiction to that case, and more in keeping with the court's thoughts on res ipsa and malpractice in 1928. The court in Ballance v. Dunnington did not recognize res ipsa. Ballance had gone to Dr. Dunnington to locate a needle which had become imbedded in his foot. He told the court that he had been exposed for two hours, and that this had led to the burns on his foot. Dunnington testified that although the patient had been in the office for two hours that was not how long the machine was on. During the case experts had agreed that

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even with proper care and skill burns do occur. The court ruled for the physician.137

Therapeutic Error The real danger from the x-ray came not in diagnosis, but during therapy. The initial use of Roentgen's discovery was obvious: you could peer into previously unseen places, but there were many other uses for the x-ray discovered after this initial success. Foremost among these was the use of the x-ray to treat epidermal problems.138 J. William White, a professor of clinical surgery at the University of Pennsylvania, was one of the first to research x-ray therapy. In 1906 he wrote, I must confess that, as with every new discovery, my thoughts turn to its possible application to a subject which has invincible attraction for me - the cure of cancer.139 The x-ray's usefulness in treating carcinoma of the skin was discovered only 5 years later. Subsequently, physicians experimented on ailments ranging from skin tuberculosis (lupus vulgaris) to acne. When William Allen Pusey, professor of Dermatology at the College of Physicians and Surgeons of Chicago published the first textbook on xray therapy in 1903, The practical application of the Roentgen rays in therapeutics and diagnosis, he listed 52 diseases which could be treated with the x-ray. The dark side of x-ray therapy was the possibility of burn. While a patient could have a skin problem removed with an x-ray, burns occurred when exposure was either to intense or too prolonged. In the late 1920s, when the machines were equipped with intensifying screens and high capacity tubes, accidental burning from electrical fluctuations was reduced, but the increase in the number of people operating the machines, and the number of patients getting x-rays, increased the number of burns cases. Variation among the machines exacerbated the problem. Machines worked differently from one another, there were few guidelines, and, where there were guidelines, physicians had to calculate intensity of ray, exposure time, and patient proximity to the machine. Physicians were not engineers, and this type of work was foreign to many of them.

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One of the earliest cases involving an x-ray burn from therapy demonstrates several of these issues. A plaintiff sued for injuries sustained by an x-ray burn. The plaintiff, James Hales, was a machinist, in St. Louis Missouri, who, while practicing his trade, scratched his hand. Within a short time this injury developed into a red spot on the back of his hand about the size of a half dollar. He consulted the defendant physician, Oney C. Raines on August 10th, 1901. The defendant diagnosed the case as eczema and applied a salve. After trying different remedies for over a year until September 27th, 1902, all of which failed, Dr. Raines commenced the use of x-rays. He x-rayed the hand 9 times within 11 days with durations of from 15 to 35 minutes each, requiring Hales to hold his hand within a half inch of the tube of the machine. As a result, the inner tissues of Hale's hand were so burned that he received a permanent injury which some witnesses referred to as a "claw hand". While all the evidence demonstrated that 9 times in 11 days and 10 to 15 minutes of exposure was proper enough, it also demonstrated that the defendant was careless and negligent in having the plaintiff place his hand so close to the x-ray machine. The court writes, "The proof is overwhelming that, though the application of the x-ray was a proper treatment for eczema at the time, the apparatus should have been adjusted at a distance from 6 to 12 inches from the effected part to which the treatment is applied. In other words, no physician, in the exercise of ordinary prudence and care, would apply the x-ray with the instrument within 1/2 inch of the parts under treatment."140 When the x-ray machine did have a safety device attached to limit duration or intensity of exposure, there was still the need for the operator to be certain that the device was on and working. The Legler court141 affirmed damages for a roentgen ray burn. Surgeons removed one of Legler's testicles after he had been diagnosed with a malignant cancer. They prescribed x-ray treatments to prevent a recurrence of the cancer. The technician failed to put the filter onto the machine and Legler suffered a severe burn. Physicians testified that even if the wound healed he would be permanently disabled. During the course of his treatment for the burn he incurred $3000 in hospital bills, and while he used to make $2,500 a year, his disability prevented him from working. Legler was awarded $20,000.

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Physicians argued that not everyone had the same reaction to the rays, and that in fact, some patients were especially sensitive to the treatments. While physicians should not be held liable for unintentionally burning someone with sensitive skin while following all of the standard procedures, it would still be possible for the physician to be liable for such damage in some circumstances. The courts found a way to protect physicians while balancing the needs of patients. Recognizing that patients might indeed be sensitive to the rays, the courts allowed testimony on the plaintiff's sensitivity. However, the plaintiff had to prove extreme sensitivity to the rays, and that this condition was known to the physician. It would be up to the jury to determine if the doctor had knowledge of the sensitivity, and whether or not he had used due care.142 In one example of this the court ruled in favor of a physician on appeal writing, ""It appears uncontradicted by expert testimony that an x-ray burn is due either to an overdosage or to hypersensitive skin, and there is no way of diagnosing in advance whether the skin of an individual is hypersensitive to the X-ray."143 There was also a recognition that honest mistakes in judgment could be made, which would later result in a burn. In one case a physician was not held liable when his x-ray treatment of a patient with eczema resulted in minor burns to the patient. The court recognized that such treatment requires the assessment of the patient's needs by the physician, and that there is some room for error even in the best of circumstances.144 In 1933 Richard Kovacs wrote a piece for the Journal of the American Medical Association entitled "Accidental Injuries in Office Practice." The article focuses on injuries which result from treatment which utilizes machines. Kovacs points out that the "doctor is not only supposed to be a diagnostician and have a good knowledge of the action of drugs and of the principles of surgery, but is also expected to be a mechanic and somewhat of an electrotechnician." In addition, the physician must be able to manage a staff of nurses and technicians and is liable for their treatment errors. He analyzes accidents resulting from the use of therapeutic apparatus. Without explanation he chooses to not discuss x-ray treatment. From the content of the article we can assume this is partially because x-ray burns frequently do not appear until weeks, even months after treatment. Kovacs classified the causes that lead to accidental injuries in 3 broad groups: the operator, the patient, and the machine. From these causes there are three groups of injury: electrical shock, burns, and

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mechanical injuries such has the "tearing of the skin or rupture of internal organs." The article is somewhat like the earlier pieces which listed ways to prevent malpractice, but is far more specific in nature. For each class of cause, Kovacs writes a brief essay on preventions. The operator must be properly trained both in how to use the equipment, and in proper interaction with the patient. Kovacs tells the tale of his testifying in a case in which the "plaintiff testified that, when she cried out with pain during a diathermy treatment, the doctor said, 'Don't be a baby,' and afterwards a good size burn was found where the pain had been complained of." The operator must examine the equipment before the procedure and the patient following the procedure. The patient can be the cause of injuries because the operator relies on the patient's "apparent comfort" and other choices made by the patient can interact with any given procedure. Certain skin oils can increase the skin effects of x-rays. The apparatus can be poorly designed or malfunctioning.145 During the 1930s the most common suits involving the x-ray were no longer those involving fracture, but those involving the use of the xray in therapy, and the vast majority of these suits were against radiological specialists. Nevertheless these radiologists still had trouble with their technicians.146 One radiologist, I. S. Trostler, made a second career of writing about and testifying in malpractice cases. He was one of the many physicians who felt compelled to write articles to their fellow doctors on how to avoid malpractice suits. In 1921 Trostler traveled to Boston to speak before the annual meeting of the Radiological Society of North America, where he informed them of several methods for avoiding malpractice. In 1924 he spoke at the annual meeting in San Francisco and again pressed radiologists to take steps to defend themselves against suits. He warned them to never guarantee a cure, to time every exposure and to keep a record of it, and to never leaving anything to memory.147 For Trostler, and for his audience as well, this was defensive medicine. There was reason to be defensive as well. Trostler, who by 1935 had testified in over one-hundred malpractice cases, had no love for the legal profession, believing that they were responsible for all of these malpractice suits. He wrote,

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Unhealed Wounds Physicians have long been preyed upon by the legal profession and it is admitted, yes, even sworn to (and at), that if it were not for the more or less constant attitude of aggressive hostility of a considerable member of the legal profession, to physicians (except when they are ill and find themselves unwillingly under our care), our path of duty, while perhaps not exactly like the proverbial bed of roses, would be much more conducive to mental ease and freedom from perplexity and restraint.148

Lawyers were so unbearable that Trostler enjoyed quoting the New Testament in denouncing them. He quoted substantial portions of Luke, including, "Woe unto you also, ye lawyers! For ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers."149 His enmity against lawyers was overworked, but it was not born of a vacuum. Certainly patients needed lawyers in order to become plaintiffs, but there was even more going on here. Perhaps most significant is that during the first three decades of the century, the number of lawyers in the U.S. increased at a greater rate than the number of physicians. Some of this is due to the effect of the Flexner report, and the subsequent closing of many medical schools. In 1900 there were 24,528 fewer attorneys than physician in the country, but by 1930 there were 6812 more attorneys than physicians.150

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1900 132002 107474 25171 12408

1910 146064 114704 21526 19498

1920 144977 122519 13798 24503

1930 153793 160605 21597 46751

180000 160000 140000 120000 100000 80000 60000 40000 20000 0

1900

1910

Total # of Doctors

1920

1930

Total # of Lawyers

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Medical Students

Law Students

It is clear form the last portion of the last graph that the problem was likely to worsen. Trostler wanted to deny lawyers the opportunity to thrive on malpractice suits and so sought to defend against them by teaching fellow physicians ways to avoid suits. He was not the only physician who taught this defensive medicine.

Physician Advice Literature Standardize Just as the x-ray machines, safety mechanisms and procedures were improved in response to suits, doctors were now advised to manage the risks which could lead to suits. Kovacs had determined that bad outcomes from x-rays were the fault of either the operator, the machine, or the patient, and physicians and hospitals responded by improving the

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machines and training and overseeing operators. At its core, this response is standardization. Providers asked, “What do courts expect of us?" and then took steps to meet those expectations and thus reduce suits. The physician advice literature has the same risk management focus. The authors note common causes of suits which can be controlled by doctors and then advise educating patients, consultation with other doctors, maintenance of records, and organization of billing. The advice literature breaks down into two types: articles written by doctors and articles written by lawyers. Titles are remarkably similar: "How to avoid malpractice suits," "The prevention of malpractice suits," "How to avoid and prevent suits for alleged malpractice." The authors' outlines also appear extraordinarily alike. Typically the article provides a definition of malpractice as negligence, or performing below the standard of care, which leads to harm, and then lists, in some form or another, techniques for avoiding malpractice. I. S. Trostler, the radiologist who condemned lawyers, wrote frequently on the subject. Trostler pleaded for physicians to educate themselves on suits, and argued that malpractice insurance was essential to the protection of physicians. He wrote “insurance against and indemnity guarantee for malpractice lawsuits is almost as necessary as a license to practice."151 He also pointed out that the same physicians who carried life and property insurance balked at purchasing malpractice insurance. Trostler warned, "No one is safe or immune" and "You may be next!"152 Trostler and other writers listed many ways in which doctors could go beyond purchasing insurance to actively insure against malpractice suits. In 1928, Czar Johnson wrote a piece for Minnesota Medicine in which he noted the lack of "any organized educational program for the prevention of alleged malpractice," and provided a list of ways in which physicians could avoid suits. The list included an exhortation to consult as "Consultations are a protection. They distribute responsibility, prevent mistakes and omissions, develop esprit de corps and prevent malpractice suits." Johnson also proved that written records are invaluable as "a sheet anchor in malpractice suits," and warned against charging excessive fees, arguing that disproportionate fees for relatively the same service frequently cause suits. He

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particularly warned against charging the rich exorbitant fees with the excuse that this allows the doctor to work on the poor for lower fees.153 Johnson believed in the development of local guidelines, though he was uncomfortable with the idea. He wrote: A reasonable, standardized obstetrical and surgical technique; treatment of fractures; use of electrical apparatus .... should be adopted in each locality. I appreciate that this will, to a limited degree, interfere with personal initiative; however, it will at the same time safeguard the public and the profession, which is more important.154 This was a centerpiece of the confrontation between medicine and the law. The bedrock of American medicine is the independent practitioner, but this position as an independent operator can be at odds with the idea of a standard. Johnson reminded physicians that although personal judgment was vital, there was no substitute for practicing in the same way in which the rest of the profession practices. Later he wrote, The rule is that the treatment accorded must be that which is customarily prescribed by physicians doing a like class of work. Therefore surgical treatment must be of a grade approaching the topmost in the community. The same holds true of the other usual division of medicine. Conceit or selfishness are not legal defenses.155 Physicians must practice according to their judgment, but their judgment had better fall within the homogenized field. Beyond Johnson's call for standardization of practice, there are other admonitions which continuously reappear in the lists.

Avoid Inopportune remarks Physicians had learned that to guarantee a cure was a foolish application of the bedside manner. Although the courts had ruled that a physician's willingness to treat a patient in no way guaranteed a cure, if the physician did explicitly guarantee a cure to the patient, he could be

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tried under contract law. The physician had in effect created a verbal contract that his treatment would cure the patient. If the cure did not occur, even absent injury, he could be sued for not having lived up to his contract. While physician rarely guaranteed a cure, they could be overly optimistic. J. G. Crownhart, the Secretary of the State Medical Society of Wisconsin wrote, Medicine is a science, but its proper application is largely an art. It is nothing less than folly for the physician to make unnecessary positive statements when it is but human to err and particularly easy in diagnosis or treatment in the broad field of human ills. When you say "It is nothing but a cold." Take these, go back to work and forget it," and subsequently it is found that the patient had incipient tuberculosis all the time he saw you, he is sure to at least resent your too positive attitude if nothing more.156 Overly optimistic comments about one's own care were not as much of a concern as negative comments about a previous physician's. Two physicians who claim to have analyzed 35,000 cases occurring before 1934, told the readers of the New England Journal of Medicine that the number one cause of malpractice suits was "Inopportune remarks by subsequent physicians."157 Remarks of this type were thought to lead patients to sue their prior physician, and authors found them occurring far too often. The scenario is perfectly summarized here, Physicians that promise quick results and fail to attain them frequently find their patient is presently someone else’s now. Patients travel onward for a host of other reasons but whatever the cause it is at least a temptation for Doctor Two, Three or Four to assure the patient that at last he has seen the light and come to a man competent to handle his case.... Such statements by Doctor Two depreciating the services of Doctor One may occur by reason of malice, too hasty an examination into conditions as they existed when Doctor One saw the case,

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Unhealed Wounds self-pride in discovery of an obscure condition heretofore undiscovered, or an effort towards self-aggrandizement.158

Physicians were concerned, not that mistakes might be made, but that they might be pointed out to the patient. A new standard pushed physicians to change their speech to their patients. The need for this defense goes beyond mere prudence when speaking to the patient, to a belief that patients deliberately present themselves looking for a condemnation of their previous physician's work. One physician writes, The specialist is unknowingly and unwittingly drawn into malpractice cases by the simple method of the patient presenting himself at the office of the specialist, often upon the advice of a lawyer who is somewhere in the background. The patient very cautiously gives little, if any, history of the attendance by a previous physician, seeks a diagnosis, which is usually given, and then never comes back. The specialist is very much surprised in the course of two years, to be summoned as a witness for the plaintiff and have to give up time at the ordinary summons rate.159 The independent practitioner was being told that the most personal and individually styled element of his practice would be subject to standardization. Malpractice suits pushed physicians not only to improve technology and behavior, but to limit speech as well.

Keep Good Records Malpractice suits powerfully transformed medical record-keeping. What had been the physician's notes on his patients, now became a vital legal record of treatment. If it was important to take care when speaking to the patient, it became even more important to maintain an accurate written account of treatment. While what was said to the patient could be argued over, and the plaintiff and defendant could disagree leaving it for the jury to decide what actually occurred, the written record was forever. While the physician recorded the events, his record was generally regarded as an accurate account of what happened. Under the laws of evidence written materials were usually

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inadmissible because they represented hearsay evidence, but business records kept on a regular basis were exempted. If it was the regular course of a business to make a record of a transaction or act, then that record can be admitted as evidence, so long as there was testimony that the record corresponds to the act in question. Certainly the evidence of the record could be taken to task by the plaintiff's attorney, but it is difficult for the defense to disagree with its own record. The notes in the record are like an oath on their own, and for a physician to contradict his written record was tantamount to perjury. On another level, these exhortations to maintain good and accurate records were another sign that physicians absolutely refused to see that errors actually occurred. If the records were kept accurately, and the physician erred, then the record would create a guilty verdict written in the defendant's own hand. The authors never mentioned this possibility. A California surgeon, Silas A. Lewis, who spent several years examining the record keeping of physicians and hospital employees, was one of the few to point out that physicians do make errors. While he focused on the best practices for maintaining records, he began one article with a surprising opposition to the typical physician's view of malpractice. He writes, In these days of unrest and turmoil, it is not surprising that the physicians and surgeons have been the target for malpractice actions of all descriptions. The shyster lawyer, the quack, the horde of sects, and the multitude of non ethical M.D.'s, have seen their opportunity to put their hands in the pockets of many of our most serious, efficient and hard-working professional confreres. The first impression is that we should censure these vultures and commiserate with the prosecuted. When we make a study of the hospital records as kept by and under the supervision of the attending physician or surgeon one is not so sure that sympathy for the medical man is so well placed. I do not mean to suggest or intimate that the doctor keeping these records intentionally falsifies, but they are often grossly unkept or in error. Most forcibly is this brought to him on the witness stand. There is no more pitiable sight than the doctor caught in this embarrassing position.160

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Lewis's statement was a rare and early demonstration of a physician noting the possibility of physicians' fault. The larger point of his work was that records were very poorly kept. During the course of this article, Lewis examined a series of poorly kept records including records which failed to cite the patient's previous visit to the hospital, disagreement between pre-operative diagnosis and operation, and x-ray charts failing to show a need for the resulting operation. He noted that frequently records were incomplete and explained some possible causes. If there is no stenographer present surgeons frequently complete an operation, give verbal orders for post-operative care, then depart the hospital without creating any written record of the operation. Lewis told of records of a pathologist's report for a pathological ovary following a surgeon’s report which neither mentioned the pathology nor the oophorectomy, leaving a jury to wonder, "Did the doctor know he had removed this ovary at the time of the operation and was its extirpation in the best interest of the patient's welfare?"161 During the first three decades of the century, few legislatures made the keeping of records compulsory. Federal law required physicians to record any narcotic or alcoholic substance prescribed to patients, and health laws required that the physician keep and report records of births, deaths and infectious disease, but other records were kept primarily for administrative purposes, including reviews of physician practice, and for defending against legal action. A Minnesota lawyer writing to physicians on how to avoid malpractice focused entirely on the keeping and use of records. He began by noting that when facts are disputed in a malpractice case there are three key points: "the propriety of the treatment given... the treatment actually given... and the result." Using the analogy of the before and after picture several times, he stressed that whatever the treatment there must actually be a remaining picture, or record, of the patient's status upon arrival, the treatment, and the effects of treatment. He literally provided a list of do's and don'ts for physicians to follow and number one on the do list was "Get in the habit of keeping records and above all complete records. A poor record is frequently worse than none at all."162 While legislatures ignored medical record keeping, lawsuits compelled physicians to keep good accurate records. Joshua Chinitz, a lawyer working for the American Hospital Association, pointed out that, "Hospital records thus have a far-reaching influence extending beyond the dictates of administrative and medical emergency... Millions of dollars in litigation are dependent upon their

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content."163 The implication is clear: litigation was driving a new standard of record-keeping for physicians and hospitals.

Recognize the Statute of Limitations and Beware the Impoverished Patient The statute of limitations and destitute patients may appear to be odd subjects for authors writing about the prevention of malpractice suits, but there is a certain logic behind it. Given that most physicians were unwilling to accept the existence of actual physician error, they turned the motivations of plaintiffs. The authors argued that the patients sued because lawyers manipulated them to sue, doctors denigrated their fellow practitioners' work, and finally because patients expected miracles. Most often the doctors who wrote these articles argued that plaintiffs (and then lawyers) were motivated by pure greed. Doctors referred to malpractice as "alleged malpractice,” and "legal blackmail." They argued that most patients failed to pay for medical services either because of poverty or stinginess, but some deliberately set the physician up so that they could reap rewards from a malpractice suit. Physicians could defend themselves by knowing the statute of limitations for a malpractice suit, as well as the statute of limitations for suit for payment. Several articles point out that in most states the statute of limitations for malpractice was two years, while for an unpaid debt it was six years.164 This, the authors note, could work in the doctor's favor. One author wrote, When a patient does not pay his bill many physicians threaten him with suits or turn the bill over to a collection agency who may start suit in the physician's name. The man who does not pay his debts within a reasonable period of time when ability to pay exists, is frequently not a man of honor or character. Such a man may bring a counterclaim alleging malpractice as a means of blackmailing the physician into dropping action for collection of fees... The understanding physician, appreciating the danger in counterclaim on the part of the unscrupulous,

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Unhealed Wounds will watch that bills of such are not pressed unduly until after two years have past following the last treatment.165

The logic is a bit faulty unless physicians are continuously finding themselves forced to sue their patients for payment. This form of "legal blackmail" can only to represent a significant portion of suits if many physicians are resorting to lawsuits to obtain compensation for their work. However, the articles also stress that charity patients use this malpractice as blackmail to line their empty pockets. One author argues that "fully fifty per cent of the mal-practice suits against physicians are brought on behalf of indigent persons. So the physician when he accepts a charity patient or a charity position merely increases his possibility of being sued."166 Between patients who can afford to pay, but choose not to, and are then sued by their physicians, and charity patients who decide to take their cure from illness as an opportunity for creating wealth (blackmailers), these authors believed they had found the roots of the malpractice problem. 167

Inform your patient Informing the patient is a vague concept at best: How informed can a patient be about a procedure which has taken a physician years to understand the root science of, and years further to actually perform? In the record half of the century the courts repeatedly attempted to define what an informed patient is, but at the opening of the century informing the patient was rarely a concern. The most significant ruling on informed consent during these early decades comes from the Minnesota case of Mohr v. Williams which deals with the legal liability of surgeons performing unauthorized operations.168 The case, decided in 1905, deals with Anna Mohr, who had gone to Dr. Williams with a pain in her right ear. Williams examined the ear and told Mohr that he recommended surgery to remove the polyp which he had found. She agreed, and subsequently was placed under anesthesia in preparation for the operation. Williams then proceeded to perform an ossilectomy on her left ear. Mohr awoke to find that the wrong ear had been operated on, and that the operation had seriously impaired her hearing in what had been her good ear. Williams argued that after he put Mohr under anesthesia he examined the left ear and found that it was worse off than the right. He

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made a professional judgment to operate on the left ear instead. He argued that Mohr had consented to his operating on her, and that once she was under anesthesia and on the operating table, he could decide what was best for the patient. Following the trial court's award to Mohr of $14,322.50 in damages, Williams appealed, on the grounds that Mohr had consented to the type of operation performed. He added that in surgery conditions arise that a physician must respond to, though he can't always get patient consent. As a final, overarching element to the appeal, Williams argued that no consent was even necessary in the first place. The Supreme Court of Minnesota ruled that surgery without consent was in fact the technical equivalent of battery. The court made explicit that there is no "free license respecting surgical operations." The court likened the information the physician gives, and the response of the patient, to a contract in which the patient is "authorizing his physician to operate to the extent given, but no further." The court referred to contracts in other trades where the parties must conform to both the "letter and spirit" of the contract. The court's ruling can be summed up in its argument that "the surgeon cannot go beyond the authority given to him by the patient." Although many states adopted the Mohr decision, many did not. The Louisiana Supreme Court ruled against a physician who had removed his patient's prostate without consent169, but others argued that respect for medical authority must be maintained. In a similar situation to the Mohr case, a New Jersey physician who decided to correct a hernia on the opposite side of the body from the incision won his appeal to the Supreme Court of New Jersey. The lower court ruled along the lines of Mohr, arguing that the patient must be the final arbiter of whether to risk surgery or not, but the Supreme Court ruled that a surgeon who acts in "good faith" and within the "reasonable scope of his employment" cannot be held liable for battery.170 This type of decision had all but disappeared by 1930. Courts uniformly regarded it as a settled issue that the physician must require the patient's consent to procedures except in cases of emergency.171 This prescription should not be confused with later decisions calling for an "informed consent." By 1930 the courts had only recognized that the patient has a right to the protection of his own body, and that physicians have no special privilege with regards to battery.

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As one physician pointed out, "Contrary to popular notion, a license to practice medicine does not confer a privilege. It imposes certain obligations."172 Authors continued to remind physicians that there must always be consent from the patient. One writes, "Authority for surgical procedures is often neglected. Many surgeons remove organs of controversial value without the consent of the patient."173 He goes on to make his point, What would be the reaction in the average man if he went into the operating room for an appendectomy and, when he regained consciousness, he was presented a small, atrophied appendix, and two prized ovoid spheres which normally were ensconced near the appendix? Do you think the scientific record that at some time these organs harbored Neisser bacteria would compensate for their loss? And yet we would become greatly agitated were some embryo, incompetent, or unscrupulous surgeon sued for malpractice for doing this same relative operation on a woman.174 Physicians could learn from these articles, but once in a suit they would learn a great deal more from their attorneys. An example of this is found in the case of Arkansas Midland Railroad Co. v. Pearson. Jack Campbell earned a salary of $100 per month as conductor on the accommodation train carrying freight and passengers, running from Helena to Clarendon and returning. At 11 o'clock on the morning of the 22nd of September 1908 in the yards at Holly Grove Arkansas, he fell from the top of the box car. The engineer went to help him, found him injured, carried him to the station, and sent for Doctor Sylar, the company physician. Sylar reached Campbell 20 or 30 minutes after he was telephoned for. The witness’s first reaching Campbell saw that his ankle was swollen. The skin was badly bruised and turning black, but not broken. They moved him across the street to Dr. Johnson's house. The engineer, now the superior officer of the train, telephoned the superintendent, reported the accident and asked for instructions as to the further proceeding of the train. He was directed to proceed to Clarendon and return and was met on his return trip by the superintendent at Pine City. They picked up Campell on the return trip through Holly Grove, and he was put on a cot in the baggage car. The train then proceeded to Holena, doing the usual switching at various

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stations, reaching Holena between 8 and 8.30 p.m. Campell was carried to his residence where he was treated by Dr. Cox, the company physician. The next morning he was placed upon one of the defendant's passenger trains and taken to a hospital at St. Louis, Missouri. After reaching the station there, there was some delay of probably an hour before he was carried to the hospital. At the hospital, a physician examined him, unwrapped his feet and took off his splints, re-wrapped them and put them in a wire basket. He was put to bed, and about 9 o'clock the next morning the superintendent and chief physician examined him. At about 11 o'clock he was examined with x-rays. At 4 p.m. they took him to the operating room, punctured his feet, and put in some rubber drainage tubes to let out the bruised and black blood. At 7:30 a.m. on Friday the 25th he died of delirium tremens. In addition to being a snapshot of emergency care at the time, and being another example of the frequent delay of x-ray examination early in the century, the case has one particularly important point. In his testimony Dr. Sylar said "I gave him such treatment as is customary with physicians of this community as to the injuries of similar character." The language he chooses is almost precisely what the legal definition of the standard was, and does not sound like the typical words of a physician. Undoubtedly, Sylar was coached by his attorney. He may have missed reading ways to avoid malpractice in his medical journals, but once sued he was clearly instructed on how best to avoid losing.175 The trend of articles informing doctors how to avoid suits even reached Time magazine. I.S. Trostler, the Chicago radiologist who was an early advocate of insurance, and who had written several articles on how to avoid suits, reached national attention when the magazine did a short piece on the subject. Time did not have the enmity for lawyers Trostler did, but their lead to the piece had the same reverence for physicians while putting the blame elsewhere, The most cautious and conscientious doctor never knows when a disgruntled or scheming patient may sue him for malpractice. Although a doctor may be legally exonerated, his reputation inevitably suffers from such publicity. In Clinical Medicine and Surgery last week Dr. Isador Simon Trostler, Chicago roentgenologist, trotted out a few fundamental rules

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Once a physician was sued the only hope was an excellent defense. Some of the pieces of the advice columns, such as "keep good records" would be useful, but more important was good expert testimony supporting the physician's work, and good testimony from the defendant -the physician himself. It should be noted, that there are no articles presenting a "standard of care" for any diagnosis or procedure. The articles focus only on bureaucratic activities which will avoid suit, not clinical standards which will improve care.

Expert Witnesses Just as physicians had the opportunity to learn how to avoid suits by reading articles in their medical journals, they could also read articles on medical testimony. I. S. Trostler wrote an entire series of articles on expert testimony for the journal Radiology. Radiologists were in high demand in the courtroom, though testimony for malpractice cases was only a portion of their courtroom time. Frequently they testified in other tortious actions such as personal injury cases, and they also testified in criminal cases. In a system which is founded on the idea that the jury alone will interpret the facts of a case, the expert witness is paradoxical. Unlike any other witness, the expert is allowed to give his opinion about the ways in which the facts should be interpreted. Acceptance of expert testimony has been under review since its inception in the 19th century. By the 1930s enough physicians had spent time in court to merit a significant number of articles on the subject. These articles, written by both physicians and lawyers, all agreed that time on the witness stand was difficult for the physician. One wrote that the expert suffers on the stand until "Sooner or later, having finished or been finished, the doctor steps down."177 Physicians were not used to the thinking of the courtroom, and believed that the last thing the court demanded was the "whole truth."178 Physicians saw truth as scientifically verifiable, while the results of a trial are more like the calculus of truth.

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Alternatively, physicians understood that remarkably subtle gradients existed between error and malpractice, while in the courts the problem became black and white: negligent or not. The result was an adjudication of medical error which relied on fundamental opposing epistemologies clashing before a jury. Many physicians had difficulty putting things into layman's terms while still remaining accurate. Because plain language could lead to a shallow interpretation "the doctor may be easily inveigled in a network of contradictions and may be hopelessly cornered, and must finally admit and confirm all those convictions which he held and declared to be absolutely absurd."179 A Kansas City doctor told the annual meeting of the Kansas Medical Society that "the physician who wishes to assist in the dispensation of justice should guard his manner as well as his words."180 In addition to the clashing of medical and legal epistemologies, the courtroom became the uncomfortable crossroads where the detailed jargon of technical science met with the limits of public understanding. Even with careful words and guarded manner, physicians found it difficult to get juries and lawyers to understand. Often physicians felt that neither juries nor attorneys were intelligent enough to understand their testimony. A New Hampshire physician complained that when he witnessed a colleague testifying as a witness "in his own way and in his own words for the information of the jurors who either lacked interest or found the testimony too far over their heads."181 Complaints about the ignorance of jurors led some physicians to lose faith in the jury system altogether. Doctors did not feel that ordinary citizens had the capability to decide whether or not a physician had committed malpractice. One physician wrote, "We would prefer to be tried before a bench of judges rather than by a so-called 'jury of one's peers,' for they are not our peers under the present system."182 By the 1920s, juries reciprocated with a distrust of physician witnesses. They sensed the stonewalling by physicians, and reluctance to admit possible error. Judge Waugh, at the time a lower court judge in Elkins, West Virginia, summarized what he had witnessed from the bench over the years, "The layman sees the profession divided into three distinct classes, - the physician, the shyster and the quack... [A] little

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Unhealed Wounds more frankness on the part of the practitioner would accomplish much towards gaining and retaining more of the public confidence. He knows that there are many diseases and ailments which he cannot treat successfully, yet with knowledge of the fact that he can accomplish nothing [sic], he may go on treating these chronics for years rather than tell them in the beginning, as he should do, that their case is one for a specialist.183

To complete the circle - physicians distrusting juries, juries distrusting physicians, - the court itself was unsure of medical experts. Some judge may have worked to discount expert commentary. Some physicians and attorneys felt that the court found ways to belittle their standing, as in the Pike v. Honsinger case, when the Judge took over the examination of the defense's expert witness. Years later a physician writes of the courts' relationship with expert witnesses, There is perhaps a danger that an inexperienced jury may be unduly influenced in reaching a decision by extrinsic factors, such as the personality or demeanor of witnesses. Can it be that the Court, realizing this, in its discretion to lessen undue influences of this kind and avoid what it believes to be a miscarriage of justice, willfully humiliates, and in a measure even discredits witnesses in the eyes of the jury?184 Physicians became reluctant to appear before the bench, and the profession sought to insure that they would only appear for the defendant. Strong pressure could be brought to bear against those physicians who chose to testify for plaintiffs. Radiologist and frequent expert witness I.S. Trostler commented on the physician's duty to uphold this conspiracy of silence. He let his readers know that only once in the more than one-hundred malpractice suits in which he testified did he do so on behalf of a plaintiff, and that was only after he received permission from the president of both the state and local society of medicine, and because the negligence was so egregious. The case in which Trostler testified for the plaintiff involved a fractured femur which the physician did not x-ray until 8 weeks after treatment. That x-ray showed a side-by-side union of the broken parts, with a five inch shortening of the leg.185 The plaintiff was awarded $9000.186

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He led not only by deed, but by word as well. His Radiology articles are peppered with warnings against this type of testimony. In one, he told of receiving a letter from a "bright, keen radiologist in central Illinois [who] was about to arrange to testify against one of his competitors, in a roentgen dermatitis malpractice suit." In his reply to the young man Trostler wrote, I take it that you are asking this information for the purpose of helping the defendant in the case, [Trostler footnotes: ' I was almost sure that he was not doing that, but deemed it good policy to lead him to think that way -- sort of a diplomatic white lie.'] as I feel sure that you think too much of your standing in the various societies to even consider appearing against any regular physician in a malpractice suit. We cannot be too careful about this, as we do not know how soon we may have to have similar aid from our fellows.... I know of several fairly good men who have appeared as witnesses against reputable physicians, who have lost caste and standing, just because they did this, either for the considerable fee they received, because of spite against the other fellow or for other minor reasons.187 Trostler believed that his words had some effect, as the young radiologist did not to testify. Trostler ends his story by saying that, "In the absence of any medical witness testifying that the defendant physician was negligent, the trial judge directed the jury to bring in a verdict in favor of the physician defendant."188 Trostler was vehement in his desire to help fellow physicians and declared, "I would rather help fight a malpractice suit than eat."189 He even counseled physicians to border on breaking the law in order to defend themselves from suits. A radiologist friend wrote him to tell him that an E.E.N.T. specialist "who is a very close personal friend and who refers a considerable amount of work to me" had broken off a scalpel while doing at tonsillectomy, and being unable to find it, "he said nothing and left it there." Later this same patient went to the radiologist for chest x-rays and the knife appeared in the films. The internist who ordered the films "practically forced" the radiologist to tell him what it was, and then he informed the patient.190

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The radiologist knew that he was in a bind. Trostler explained that he should not destroy the films, but if your technician or someone would leave those films in an unusual place and they would consequently become lost so that you would not be able to produce them in court, you would not be compelled to testify as to what they showed.... If that woman wants you to make more films, you may be unable to do it for her, because the machinery is out of order, or for some other good reason, and she might have to go elsewhere for the subsequent examination. That might let you out of a part of your trouble.191 Trostler seemed ready to do anything to keep fellow physicians out of trouble, though on several occasions he wrote to those seeking his testimony that he would not testify, because he looked down on their method of treatment. In one letter he wrote, " I am sorry to say that I most strenuously disapprove of the treatment you administered and do not believe that you will be able to find a roentgenologist of experience and reputation, or one of any standing in radiology at all, who will be willing to testify that it was good therapy, or properly administered xray treatment."192 Problems of expert testimony could be exacerbated when fees were involved. Experts were accused of allowing financial incentive to alter their analysis of the facts. Henry Taft, a New York attorney who was deeply interested in the problem of experts wrote, [W]hen enormous fees are paid to so-called expert witnesses, and especially where, as frequently happens, their compensation is dependent upon the result of the trial, the best of them may be unconsciously influenced in their judgment, while the opinions of the less scrupulous may be purposely adjusted to their financial interest.193 Trostler also told of times that he had been offered large sums of money to testify, and he believed that it was difficult for some physicians to turn down such rewards even when the case did not merit testimony either for or against the physician.

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While physicians like Trostler frequently warned of the dangers of testifying against another physician and of the influence of money on the system, plaintiffs' lawyers complained that they could not find physicians willing to testify even in cases of gross negligence. In fact lawyers frequently spoke out against the conspiracy of silence. A lawyer writing in the Journal of the Iowa State Medical Society discussed how difficult plaintiffs found obtaining expert testimony, pointing out, "To get this evidence he must go into the enemy's camp. If you don't believe it is an enemy's camp, try to procure a little evidence of this type during your leisure moments."194Judge Waugh reflected on this issue in perhaps the most complex and thoughtful way of this time. He writes, Speaking of the physician as a witness, it is generally observed that he is as a rule rather reluctant to testify. Much of this reluctancy or hesitancy is no doubt traditional, dating back to the Hippocratic Oath promulgated by Hippocrates more than fifteen centuries ago, or the graduation oath formerly required in certain European Universities. The Hippocratic Oath concludes, "Whatever in connection with my professional practice, or not in connection with it, I see or hear in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret." And the graduation oath reads, "Finally that I will not without a serious reason divulge those things which are seen or heard in the course of my practice that it is proper to keep secret." These oaths constitute a code of ethics that should be emulated by every physician. To maintain a respectable position in his profession, and a profession that is to have the respect and confidence of the public, the physician cannot be a busybody, going about telling what he has no business to tell, but his code of ethics which requires that he shall not go about talking promiscuously of his patients, their diseases and ailments, must not be construed as affecting an excuse for refusal or reluctance to testify when called upon in a court of law. Even under the oaths quoted, he can discharge his duties of citizenship with no breach of ethics.195

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Judge Waugh presents the problem in all of its complexity. On the one hand, physicians are constrained by the ethics of their profession. The profession has long prided itself on the Hippocratic Oath, and one aspect of that oath is the prohibition against negative gossip. Waugh argues that while physicians must abide by the rules and oaths of the sub-group of which they are a member - the medical profession, they are also members of a larger group, society, and must first obey their responsibilities as citizens. Trostler's recommendation that the radiologist who found x-ray evidence of the broken scalpel is a prime example of this. The court would argue that it is in society's best interest for that radiologist to willingly testify to that evidence, rather than follow Trostler's advice to have an assistant mis-file the x-ray plates. During the 1930s commentators sought a way out of this crisis of the experts. The most commonly recommended solution was the creation of a commission of doctors which the courts could refer to for expertise in medical matters. Remarkably many lawyers were interested in this strategy, and for a variety of reasons. One lawyer, who pointed out that it was almost as difficult to get doctors to come to court as it was to subpoena those "Ambassadors of commerce, known as sailors," wanted to save everyone time with a commission. "As I said before," he wrote, "I believe the court should appoint an expert commission to decide all medical matters in connection with law-suits, or, in the alternative, medical testimony should be taken out of court."196 Lawyers argued that the testimony should either be in written form, or medical experts should be disallowed. Nevertheless, expert testimony continued to be used, and physicians continued to counsel one another on how to avoid, or a least how to best present such testimony.

Conclusion From 1900 to 1930, as malpractice suits increased, physicians became more aware of the problem of litigation and sought techniques to defend themselves against suits. Leaders of the medical societies were determined to stop suits through tight organization, but physicians went against their societies and defended themselves with adequate insurance. While in the nineteenth century, physicians were most likely to be sued for bad treatment of a fracture, during the early decades of the

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century, new medical technologies, especially the x-ray, created many new suits. Initially fracture cases were the most common, but unlike nineteenth century cases, which were predicated on the physician's ineffective treatment, twentieth century fracture cases focused on the failure of the physician to use the new diagnostic technology of the xray. According to Pike, the physician could only be liable for negligence if he failed to live up to the standard of care of other physicians in his locality. While the x-ray had implications for fracture care, physicians had been successfully caring for fractures for nearly a century, and they did not implement the new technology immediately. In order for a physician to lose a case in which he failed to x-ray a fracture, other physicians from his locality would have to testify that the common practice in that locality was to x-ray potential fractures. Key to the x-ray's role in suits was the machine's ability to produce a record of the patient's injury. The record not only indicated whether or not an x-ray had been taken, it also allowed later physicians the opportunity to "second guess" the attendings choice of treatment. By the third decade of the century the x-ray had become the most common single cause of suits, not only from a lack of use, but also from misuse. As the x-ray gained acceptance as a therapeutic tool, and as radiologists expanded in number and power, x-ray burns became the more common. Physicians responded to these suits by developing lists of ways to avoid litigation. These lists did not attempt to create clinical standards of care, nor did anyone suggest measuring the outcomes of given types of care in order to develop the most effective clinical standards. Instead, these authors advised that doctors could avoid suits by not criticizing one another's work, by being wary of impoverished patients, and by keeping their patients informed of the course of treatment. Once a suit had been brought it was important that the physician had kept good records so that he could show the court exactly what he had done. He also needed to be aware of some legal issues, such as the statute of limitations on malpractice versus the statute of limitations on debt collection so that he would not go and attempt to collect a debt from a patient until after that patient could no longer sue him for malpractice in retaliation. Finally, once a physician was embroiled in a suit, it was important that other physicians not succumb to the lure of money or the temptation to eliminate the competition and testify against another

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member of the profession. During the 1940s and 1950s malpractice suits would continue to increase and the profession would take more formal steps to protect itself, but there is no evidence that the profession made any attempts to homogenize practice. In fact, looking at malpractice cases across the country one notes the incredible variety in local standards of care.

Expanding Liability World War II captured America's attention, and vast numbers of physicians and lawyers were pressed into service, leaving few to argue cases of malpractice.197For the first time in the century the number of malpractice cases decreased. Prior to the war, the expansion of care into the hospital led to a focus on care standards for the institution. States, interested in improving the public health, asked hospitals to keep specific and standardized records. Third party payers, notably the workmen's compensation system, demanded systematized records for payment. During this period the driver of liability in the hospital was neither clinical practice, nor innovations in medicine. It was the demand for a medical record and the subsequent creation of more documents. While physician's believed that documents would exonerate them, any lawyer knows that the more documents that are available, the more likely the discovery of error. Lawyers could argue that there was no documentation, insufficient documentation, or ultimately that the documentation demonstrated physician negligence. The development of malpractice during the twenty years following World War II is primarily a legal story. During these decades the courts expanded plaintiffs' ability to win tortious actions. In malpractice suits the courts expanded the utility of res ipsa loquitur. Physician fears that courts would regard certain egregious medical errors as so obviously wrong that no expert medical testimony was needed, were being realized. Courts began to question the wisdom of the locality rule. Hospitals felt new pressures as well. The long-standing immunity from suit enjoyed by charitable and public hospitals was weakened by a series of decisions. Simultaneously the hospital's responsibility for actions occurring within its walls increased as the courts expanded respondeat superior. In some instances, hospitals and physicians

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worked together to fight what they increasingly viewed as a single battle with two fronts. Physicians complained, and purchased increasing amounts of liability insurance. During the 1950s the first studies of the malpractice problem were undertaken. The AMA believed that members were concerned about malpractice and began an extended series of articles about liability issues in its journal. The AHA did the same, and developed an educational program for its hospital members. Most interestingly, the fracture that had been evidenced earlier in the century, between physician leaders who sought to stop malpractice by not buying insurance, and the typical physician who sought to protect himself through the purchase of insurance, returned. Now that fracture was over the import of malpractice itself - though the physician spokesmen became increasingly shrill in their complaints about malpractice, one study showed that the average physician was not bothered by the suits at all.

Expanding Hospital Liability By 1940, the medical encounter (what had been the doctor-patient dyad) had become significantly more complex. Patients admitted to hospitals were attended to by a variety of caregivers. This required a recording of the patient's care to ensure continuity. Careful fiscal accounting was also required for those cases in which a third party payer received billing. The need for continuity and the urgency of bookkeeping drove the development of the patient record.

Workmen's Compensation Although President Theodore Roosevelt put forth the case for workmen's compensation, it was not established at the federal level. Nevertheless, the force of Roosevelt's rhetoric (and his occasional armtwisting) led states to initiate programs providing insurance for workrelated injuries. Eligibility carried no requirement concerning length of employment or amount of earnings, but compensation was not normally given for injuries sustained outside the workplace such as in the home or on the way to or from work. Compensation was not always

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given if a worker had a heart attack or stroke while on the job, since these would not be considered work-related injuries. Benefits included medical care; wage restoration during the healing period; special compensation in case of permanent injury, such as the loss of an arm or leg; and death benefits to survivors. In most states the benefits were financed solely by employers, on the theory that it was they who were liable for workers injured on the job. By 1919 thirty-seven states had implemented programs, and physicians and hospitals in these states discovered that the acts significantly changed reimbursement for patient care, and created new source of revenue. The study of industrial health and illness was becoming a specialty within medicine, industrial medical research was growing, and industrial clinics were being founded across the country. Workman's compensation had remarkable effects on the hospitals' regard for the patient record. While the record was developed to assure continuity of patient care, an accurate record was very important legally.198 The record was ultimately kept for the benefit of the hospital: to allow it to provide continuous care, and to allow it more to defend itself against suits more effectively. A third-party funding hospital care expanded the function of the record. Now the record was needed to ensure that the state compensated the hospital for the patient's care. The record became a device which bound the hospital's and the patient's financial interests. Physicians chaffed at these financial considerations. One surgeon wrote, "...injured persons act, infer or even speak of compensation awards, insurance or litigation, early in the course of treatment, not infrequently at the session of initial attention. Money! Insurance! This factor predominates in a high majority of injured persons."199 The record, originally for medical use, subsequently used as a medical defense, now became a tool for compensation. One hospital administrator wrote, "The use of the record for legal, insurance and compensation purposes is somewhat different from the medical use, yet it should be carefully safeguarded so that the record will serve the best interest of the patient."200 He is not arguing for the patient's medical interest, but rather for the patient's financial interest. The patient's financial interest was in fact the hospital's financial interest. Any sums from workmen's compensation, or other insurance, ended up in the hands of the hospital, not in the hands of the patient. Although medical insurance did not become a significant force until after World War II, insurance affected the record early on. When

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hospitals asked, "Who is the customer?" they received increasingly complex answers. The customer had been the patient: the patient came through the door, received treatment, paid, and left. In the world of workmen's compensation, and voluntary insurance there were now two customers: the customer who received the service, and the customer who paid. The Assistant Superintendent of the Barnes Hospital in St. Louis wrote, The use of the record for insurance purposes is for the benefit of the patient although the insurance company benefits at the same time. Here the hospital is dealing with two parties of its public, and as a public relations policy there is reason to furnish the insurance company with the necessary information in as courteous and prompt a manner as is possible, at the same time safeguarding the patient's best interest. The written consent of the patient should be attained before giving out information for insurance purposes. Insurance companies are now having their clients sign a waiver giving permission for the company to obtain information from the hospital record.201

Hospital Bureaucracy The initial development of a third party payer occurred at the same time that acute care was shifting away from the home. In 1909 the AMA counted 421,000 hospital beds in the United States. By 1930 that figure had nearly doubled to almost one million beds. Between 1930 and 1960 hospital beds increased by another 500,000.202 In the bureaucratic hospital setting there was a need for a record to obtain third party payment, but maintaining an accurate record was also vital to insuring the continuity of patient care. These records would quickly become central to any malpractice cases, because they increased the facts which could be made available to juries. During the thirties, as the hospital increasingly became the center of care and the locus of physician liability, physicians, hospital administrators, and nurses began to worry about the legal status of the record. The benefits of the record were obvious. Patients in the hospital encountered a wide variety of nurses, technicians, and physicians. The

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record allowed each provider to discover the patient's status quickly, and to add information for the next staff member to see.203 These records were also an important element in malpractice cases, and those involved in hospital administration knew this.204 Articles on records appeared continuously in hospital journals throughout the 1930s and 40s, and sessions on records were part of many hospital conferences. As the importance of the record became increasingly obvious, state bureaucracies which governed hospitals made the keeping of such records compulsory. The federal government required all institutions to keep records of the prescription of habit forming drugs, including alcohol (the regulation was originally part of the Federal Prohibition Act). Every state required hospitals to keep records of births, deaths, infectious diseases, and venereal diseases. The hospital record contained much more than this public health information. In 1931 the New York State Board of Social Welfare required that every hospital in the state maintain records of each case, including history, diagnosis and details of treatment.205 The importance of the record in malpractice cases led to arguments over its ownership. Courts easily determined that the hospital owned the paper upon which the record was kept, but took longer to determine the status of the information contained in the record. Because the record was written by hospital staff, the hospital could argue for ownership of the information. On the other hand, patients could reasonably assume that because they paid the staff, the record belonged to them. "Therefore, it may be said, that while the hospital owns the records, as to the physical things of which the records are composed, it may not own the facts recorded in those records," a Chicago attorney wrote in the journal Hospitals.206 For those involved in malpractice litigation this was a serious issue. The records existence as medical reference tool and a legal document led one administrator to conclude, "Every record should be made in such a way that it can be adequately explained and justified in court."207 When records were subpoenaed, hospitals would assert their ownership of the document by sending the record with the hospital librarian who would testify to the authenticity of the contents, and then either read information into the trial record or allow another to do so.208 Librarians and their messengers were cautioned to exercise care when passing the record on to anyone at the courthouse. One author writes, "A subpoena is easily obtainable and the records might be called to a certain courtroom and taken by a stranger there. There are many tricks

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in the law business."209 Later, Photostats or photocopies of the record would be delivered with equal care. For the hospital the most dangerous of the lawyers' "tricks" was the obtaining of confidential patient information.210 In a malpractice case such information would probably have been released by the plaintiff, but in other cases such information could be used against the patient.211

Charitable Hospitals By 1945 the record - a medical and financial accounting of the patient's care - had been developed. The importance of the record to malpractice cases was well understood. In the post war period, new legal developments would make the hospital the nexus of malpractice suits. The courts would expand hospital liability to make the hospital fully responsible for all activities with its four walls. Under the doctrine of respondeat superior hospitals assumed responsibility for the acts of employees. In most states the doctrine did not apply to charitable hospitals until the late 1950s. If a nurse in a charitable hospital negligently scalded a patient, the patient had no recourse but to sue the nurse, who was rarely insured.212 This is a vital distinction for the courts, because they have created two classes of patients. Those patients cared for in charitable hospitals effectively forfeited their right to sue. Charitable hospitals were not subject to liability. These decisions demonstrate the expansion of liability which led to an increase in suits against both physicians and hospitals. The courts viewed hospitals that required no payment from their patients and were funded by endowments and contributions from private or government sources as distinct from private hospitals in which patients were required to pay. An English court set the precedent in 1824 ruling that charitable institutions were not liable for the negligence of servants in the performance of a public duty, though the individuals themselves could be held liable. The ruling was not a license to provide poor care. The 1880 case of Glavin v. Hospital, raised the issue during a suit involving hospital negligence in the selection of interns. An intern had injured the patient when instead of calling for a surgeon he had performed the surgery himself. The defense argued that even if the intern was an agent of the corporation who had committed an act of negligence, the corporation, because it was a charitable institution, was exempt from all liability.

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The Glavin court was not moved by the cases cited by the defense, and even ruled that a public policy which forbids the use of corporate funds to compensate for injuries is not sound. While the court did not find the hospital negligent under the doctrine of respondeat superior, it did rule that the hospital was liable for negligence in its selection of physicians.213 This was the "opening wedge to recovery"214 in a variety of cases. While plaintiffs could not sue the hospital for the acts of its staff - interns215, technicians216, nurses and physicians217 - they could sue for the negligent selection of that staff. Nurses were the backbone of hospital care, and nurses who injected incorrect solutions218 or improper amounts, and those who accidentally over-heated a hot-water bottle, or left it on the area for too long fill the case books. Nevertheless, patients had difficulty recovering judgments in such cases. Charitable hospitals avoided liability as the doctrine of respondeat superior did not apply to charitable institutions. Few plaintiffs went on to sue the individual nurses who could rarely sustain costs let alone a judgment. Plaintiffs injured by nurses employed in private hospitals did have some success. The courts had no doubt that nurses provided care, and while nurses could not be expected to perform at the physician's standard of care, they did need to perform care at the nursing standard. In a 1930 hot water bottle case in California the court ruled that The duty of a nurse is a .... continuous duty. Dealing as she was with an unconscious patient unable to care for himself, it was her duty to observe the effect of the remedy upon the patient. The powers of resistance and the condition of the patient must of necessity have much to do with the application of remedies...and this duty could only be observed by constant and unremitting care and attention, which is just as obligatory on a nurse as is the duty of applying the remedies directed by the physician.219 The courts recognized that the standard of nursing care was exactly what had led physicians to admit patients to the hospital. Nurses were expected to provide constant attention. When a patient was injured due to a lack of attention both the nurse and the hospital could be held liable.220 The West Virginia Appellate Court made this even more plain in a 1931 decision. It ruled that it is a hospital's duty "to protect its patients

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in such manner as their condition renders necessary, and such a degree of care and diligence should be in proportion to the physical or mental ailment of the patient that renders him unable to look after his own safety."221 The care described by Rosemary Stevens - maintenance of the patient in the absence in of the magic bullet - was becoming the legal expectation,222 though the courts maintained that public and charitable hospitals were immune from such liability.223 The Nebraska court made it clear that the hospital's care was nursing care. The court ruled that "a patient is generally admitted to a hospital conducted for private gain under the implied obligation that he shall received such reasonable care and attention for his safety as his mental and physical condition, if known, require. A nurse's absence for five minutes may amount to negligence."224 Physicians had shifted the locus of acute care from the home to the hospital. The courts began to define a standard of care for hospitals which fit the attitude of physicians. The hospital was more effective than the home because of the staff's attention, and if that attention was not sufficient, then the hospital could be held liable. One way in which hospitals and their physicians and staff protected themselves was through careful use of the hospital record, charting each event in the patient's care. Nevertheless, this very care in the documentation of care would create more opportunity for suits. Without documentation plaintiff's lawyers could only play witnesses against one another. With documentation, the plaintiff's could now use the record - or the lack of a record or the insufficiency of the record - to establish the plaintiff's case. Just as the permanence of the x-ray film had created more opportunity for suit because others could second guess the physician's decision making using the same information he had at hand, the record allowed for clear retrospective reviews of the patient's care. Even the charitable hospital, theoretically immune from liability, could be held liable for negligence in selecting staff. Patients were not admitted to the hospital for advanced specialty care or stunning new technology. Patients were in the hospital to be looked after continuously, and when that standard was not met, hospitals, those without charitable immunity, paid.

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Expanding Physician Liability

CHAPTER 3:

Res Ipsa Loquitur The doctrine of res ipsa loquitur was neither created nor first applied in the 1950s. Nevertheless, it was during this decade that res ipsa's significance in medical liability emerged. Res ipsa loquitur, or "the thing speaks for itself" is a remarkably complex and difficult area of tort law, particularly when it involves physician liability. One attorney wrote, "Since res ipsa loquitur is incapable of accurate definition, and no one can say when it is or is not applicable, and few can agree as to its exact effect when applicable, it would be presumptuous to attempt to create order out of chaos within the confines of this brief article."225 This is wisdom worth heeding. What follows is an attempt to review some of the highlights of the doctrine, to demonstrate its expansion by the California Court, and finally to extract some small meaning from the apparent chaos. The phrase res ipsa loquitur had been tossed off casually by Baron Pollack in a legal decision for an English court in 1863. A barrel had rolled out of a window and fallen on a passing pedestrian, who sued the owner of the warehouse. The owner claimed that the pedestrian was obliged to demonstrate A) that the barrel came from his window; and B) that even if this was so, that the owner of the warehouse was responsible. Pollack, who, like most educated men of his time, had been schooled in the classics, wrote that the very fact that the barrel came from the window of the defendant, and that it is well known that warehouses are supposed to contain barrels not project them, speaks for itself. His classical training led him to say the last part in Latin, hence, res ipsa loquitur.226 Critics have argued that if Pollack had not been trained in Latin, and had simply summarized his comment as "the thing speaks for itself," then the entire problem of a "doctrine" of res ipsa loquitur 97

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would have been avoided. One dissenter in a case involving res ipsa loquitur wrote, "It adds nothing to the law, has no meaning which is not more clearly expressed for us in English, and brings confusion to our legal discussions. It does not represent a doctrine, is not a legal maxim, and is not a rule."227 Despite these criticisms Pollack's remark did evolve into a doctrine that by 1950 had been applied in so many ways that some argued that it should be eliminated altogether, and that the courts should start from scratch. The basic formula for the doctrine is that negligence can be proved using circumstantial evidence. Res ipsa loquitur refers to negligence where the harm does not normally occur without negligence, is caused by something in the exclusive control of the defendant, and which could not have resulted from the conduct of the defendant.228 Justice Holmes, Oliver Wendall while on the bench of the Supreme Judicial Court of Massachusetts wrote, "Res ipsa loquitur, which is merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence..."229 The doctrine had been widely used in torts cases, but doubts remained about its application in malpractice cases because of the stipulation that a jury could only know the standard of care in a given community through the expert testimony of physicians. Without physician expertise a lay juror could easily conclude that any bad outcome was the result of malpractice. In 1897, William Howard Taft, during his tenure as Chief Justice, wrote, "A physician is not a warrantor of cures. If the maxim res ipsa loquitur were applicable... and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art for they would have to assume some financial liability for all the ills that flesh is heir to."230

The Conspiracy of Silence231 Despite these fears some jurists eventually determined, even without physician testimony, that some patient injuries were obviously the result of physician negligence. Some resorted to res ipsa loquitur because they believed doctors were unwilling to testify for plaintiffs.

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Physicians had long argued that it was improper to testify against another physician, and the courts realized they might be acting on their arguments. Some courts worried that physicians were acting in a conspiracy of silence. Physicians denied participation in such conspiracy, but the historical record shows otherwise. There are examples of physicians who refused to testify, and even of those who gave as their reason pressure from fellow members, and their society. Because of the controversial nature of this issue it is important to present more evidence to demonstrate that plaintiffs did have a difficult time obtaining expert testimony.232 Courts specifically mentioned the problem early in the century. In 1903 one court complained that the plaintiff was denied justice because of the rule requiring expert testimony. In Johnston v. Winston233 the Nebraska court wrote, We cannot overlook the well-known fact that in actions of this kind it is always difficult to obtain professional testimony at all. It will not do to lay down the rule that only professional witnesses can be hear on questions of this character, and then, in spite of the fact that they are often unwilling, apply the rules of evidence with such stringency that their testimony cannot be obtained against one of their own members. In 1912 the Minnesota court ruled that in a case of a physician burning a patient when using the x-ray as a diagnostic tool to examine fractures, there was no need to provide an expert witness to testify that this was bad practice. The plaintiff had been unable to recruit such a witness, and the trial court dismissed the case. The appeals court ruled that no experts were needed because it could not be normal practice to burn a patient during a diagnostic x-ray.234 One lawyer began his remarks to the American Board of Legal Medicine with, "One of the great problems that confronts a practicing attorney and his client in a malpractice action is his inability to procure a medical witness to testify against a defendant physician."235 An Iowa attorney made the explicit connection between physician refusal to testify and the court's expansion of the doctrine, writing,

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Unhealed Wounds A rigid code which prohibits one physician from testifying against another in such an action merely invites an adverse reaction by the courts and juries when they realize that expert medical testimony is less available to the plaintiff than to the defendant. Appellate courts, indeed, have formally recognized in some instances that the plaintiffs were handicapped by their lack of access to competent and impartial medical opinion. Consequently, the courts seem to be increasingly liberal towards the submission of malpractice cases to juries.236

Lawyers noted that most small groups, including professional groups, have a tendency to stick together. This led to difficulties in physician liability cases because no plaintiff could succeed without expert testimony.237 Courts even noted the frequency with which plaintiffs were able to obtain only a single expert, while the defense could embrace a panel of physicians. The California Court noted this in 1951 writing, [R]egardless of the merits of the plaintiff's case, physicians who are members of medical societies flock to the defense of their fellow member charged with malpractice and the plaintiff is relegated, for his expert testimony, to the occasional lone wolf or heroic soul, who for the sake of truth and justice has the guard to run the risk of ostracism by his fellow practitioners and the cancellation of his public liability insurance policy. Medical societies strongly influenced the behavior of members. One of the advantages of the New York Society's Medical Defense plan was that physicians in the society were required to testify for brother physicians. Although it was not mentioned, there was certainly pressure to not testify against brother physicians. In the California case of Agnew v. Parks238 nine physicians refused to testify for the plaintiff. One feared losing his malpractice insurance, others mentioned that testifying for plaintiffs was "frowned upon" by the profession. In New Jersey a physician who had been willing to testify for the plaintiff changed his mind two days before the trial. Although he believed that the defendant was negligent he had a "second thought" about testifying against a "brother practitioner."239 In reversing the case the court wrote,

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The circumstances of the case must be looked at in light of the matter is of sufficient public concern to call for plain speaking - a shocking unethical reluctance on the part of the medical profession to accept its obligations to society and its profession in an action for malpractice... A charge of malpractice is a serious and emburdening charge upon a professional man, but it is not answered by an attempt to throttle justice."240 Some physician organizations attempted to bar physicians who had testified for plaintiffs from practicing. In the early 1950s the Nevada Board of Medical Examiners revoked the licenses of several physicians, because they had testified for plaintiffs. Finally one physician who was asked to appear before the board for charges of "unprofessional conduct" sued because the conduct in question consisted of publicly criticizing the professional competence of three other physicians in the community.241 This reluctance to testify for plaintiffs, coupled with the expanded use of res ipsa in other torts cases, led courts to apply res ipsa to cases of gross medical negligence. Although not every court embraced the doctrine, it became increasingly common for courts to allow res ipsa for x-ray burns, sponges left in the operating field, hot water bottle burns, or the abandonment of a patient. Courts also allowed res ipsa loquitur in some of the more bizarre incidents occurring in practice. In one case a window in a surgery was left open, and beetles flew in through the window and into the operative wound.242 In another a dentist failed to put his patient's arms into the arm-rail restraints prior to administering the anesthetic and beginning the procedure. During the procedure the patient reached out and grabbed the dentist's testicles. Desiring to extricate himself as quickly as possible he broke the patient's fingers. The court ruled that it was obviously negligent to fail to use the restraining straps.243 Although many state courts were willing to impose the doctrine, the shift to the use of res ipsa was by no means steady. Rather it was gradual, erratic, and seemingly irrational. There are many cases where one would expect application of the doctrine to apply where was applied. Some states never granted it, and others greatly expanded the doctrine. A close reading of cases reveals that some courts applied the

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doctrine even without mentioning it by name. Even this limited application of the doctrine threatened and angered physicians. One author titled his work "In malpractice suits the thing speaks for itself, and what it says is 'damages.'"244 Physicians argued that there was never any reason to use res ipsa loquitur in malpractice. No lay person could ever understand the issues involved in any medical case, and therefore expert witnesses were always necessary. An author writing in JAMA argued, "For manifestly, a lay jury of men and women, untrained in medicine, can have no opinion as to what "thing or things" a physician or surgeon of ordinary skill would or would not have done under similar circumstances save as a physician or surgeon tells the jury by testifying in open court."245 When the courts began to increase the use of the doctrine physicians were outraged, but at the same time they retreated a bit on their earlier positions. They now believed that there were instances when the doctrine could be applied. An article in the Bulletin of the American College of Surgeons told of the many cases of mis - identified patients in which the wrong limb was removed. The author included the story of a surgeon checking to see if this patient was the child due for the circumcision by asking after the anesthesia was administered, "Are you Fred?" The child thought he had been asked "Are you afraid?" and responded affirmatively. He had been scheduled for a tonsillectomy.246 What troubled the physicians in the 1940s and early 1950s, was a sense that the burden of proof had shifted from the patient to the doctor. If more cases were allowed under the doctrine, then more physicians would be required to prove that their practice had been reasonable. A lawyer for the AMA wrote that this shift "alarms us and commands our serious attention."247 A Los Angeles defense attorney told physicians, "Now a great change is going to be evident to you by a case decided in December 1955. During the period 1939 to 1955, there was a gradual transition from the theory of knowledge on the part of the laity to the theory of a bad result needing an explanation by a doctor."248 This could only lead to the "evils of jury speculation."249 Though the courts waffled in their movement to the doctrine, the shift came about. First courts refused to apply the doctrine, then, frequently they used the concepts found in the doctrine, but did not name it in their decisions. Finally, especially in California, they broadened the doctrine, so that far more claims could be made against physicians without the need for an expert witness.250

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Against res ipsa loquitur and res ipsa loquitur by any other name While some courts were moved by the arguments for using res ipsa in malpractice cases, many were not. Many courts were unwillingly pushing the boundaries. Circumstances which resembled the original res ipsa situation - a barrel falling from a warehouse - were most likely to sway the courts. In a case in which a mother entered a hospital to give birth and sustained a compression fracture while unconscious, the trial court ruled that she did not need expert testimony. The appellate court agreed, ruling that such injuries were not incidental to, and did not usually and customarily attend the birth of a child. Even the state supreme court agreed that the doctrine could be applied in this case. Nevertheless the court reversed the decision based on the defendant's explanation that following the birth, after she was returned to her room, she suffered convulsions which could not have been prevented by the defendant.251 This is fundamental to the doctrine. The anesthetized patient had relinquished control of her body to the defendant. If the plaintiff was injured while anesthetized, then the burden of proof shifted to the defense. Now, the physician had to prove that he did not commit negligence. In this case the defense proved that the convulsions might have been the cause, therefore “the thing did not speak for itself.” Even in the case of x-ray burns, which many courts had allowed under the doctrine, not every case of burn passed the courts' test. In California, where res ipsa was most liberally applied, the court did not allow it to be applied across the board in x-ray burns cases.252 In fact with res ipsa there is no type of case in which it could be applied "across the board." Each case had to stand on its own merits. While courts chose to deny some attorneys who argued for the application of the doctrine, they also applied res ipsa to cases in which plaintiffs did not specifically argue for it. The court would rule for the plaintiff under res ipsa despite the lack of expert testimony.253 A plaintiff who contended that scarring occurred as a result of hot compresses being used to treat an infected area of a limb, and who argued that no medical evidence was necessary was allowed to bring this case before a jury after a trial judge had dismissed the case. The appeals court ruled that the jury could draw its own inferences.254 In the

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case of a patient who died following the administration of ether anesthetic the court wrote "There are cases... in which non-expert jurors of ordinary intelligence may draw their own inferences from the facts and the circumstances shown in evidence. When the standard of care, that is, what is in accord with proper medical practice is once established, departure therefrom may, in most cases, be shown by nonexpert witnesses."255 Neither of these plaintiffs argued for an application of res ipsa. Other courts discovered that there were in fact instances in which the standard of care itself was not significant. In the North Dakota case of Stokes v. Dailey256 the plaintiff was given a rash from an ointment, Surfacaine, provided by his physician. He told the physician not to give it to him again. The physician gave him the same ointment, and a few days later the patient was hospitalized with a severe skin condition. Years later another doctor did a patch test and determined that the patient was allergic to the Surfacaine. The court ruled that the issue was not the skin test, but whether the plaintiff had told the physician not to give him Surfacaine again. That took no technical expertise, but was merely a question of fact for the jury to decide. There was no need for res ipsa loquitur, and yet, there was no need for expert testimony either. Courts also frequently ruled that there need be no expert testimony that breaking a needle off in a patient's arm during an injection was negligence.257 Once a needle or other instrument was lost inside a patient, no expert was needed to determine that the best course of action would be to use an x-ray to locate the item.258 Commentators on res ipsa loquitur generally agreed that in cases of a sponge or surgical instrument being left in the operating field the doctrine should be applied.259 But this did not mean that the doctrine was accepted by any means. Courts moved back and forth on the issue, and while one appeals court in a state might approve of the doctrine another might disapprove.

The Expansion in California Increasingly courts had allowed a res ipsa loquitur instruction to the jury, allowed them to infer negligence by the defendant. During the 1950's, California moved to expand the doctrine beyond its origins as a law of evidence which moved the burden of proof to the defendant doctor.260 Legal scholars argued that physicians had a moral obligation

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to explain the causes of untoward results to their patients. They argued that res ipsa is a way of making this moral obligation a legal one.261 A California court first applied res ipsa in Meyer v. McNutt Hospital262 in 1916. Following abdominal surgery Mrs. Meyer awoke from anesthesia to discover severe burns on her lower legs. No one at the hospital would admit having placed any hot object even near her legs, but there was no evidence that she could have received the injury from anyone but hospital employees. Justice Melvin wrote that, "Negligence like almost any other fact, may be established with circumstantial evidence," and applied res ipsa. When a court ruled that a jury needed no evidence to determine that negligence had occurred, then the defendant became obligated to demonstrate that no negligence had occurred. The California Courts pushed the envelope of res ipsa in two major ways. First the courts reassessed the nature of control in the doctor-patient relationship. Res ipsa required the instrument of injury to have been in the sole control of the defendant. For instance, the barrel was in the sole control of the operator of the warehouse (or his agents), therefore it was clear that if the barrel caused an injury it was due to the actions of the warehouse operator. In medical negligence cases this requirement led to difficulties for plaintiffs. For example, if a patient suffered injury during surgery his injury could have been caused by the anesthetist, the surgeon, or the hospital and its agents and therefore res ipsa did not apply. The California Courts, in their expansion of res ipsa, reassessed the nature of the medical encounter and determined that the rise of the hospital, and the increasingly close interaction of physicians and hospitals, must allow plaintiffs to sue them together. When determining the applicability of res ipsa, the court regarded these multiple players as a single defendant. The courts recognized a dramatic change in health care delivery. The California court also expanded the expectations of the medical knowledge of lay jurors. While many courts had allowed juries to determine (without expert testimony) that a scalpel sewn back into the operating field constituted negligence, courts severely limited the types of incidents that fell under res ipsa. California expanded the doctrine by ruling that an activity such as an injection was so safe and routine, that any injury arising from an injection could be sent to the jury with a res ipsa instruction.

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Shifting the Burden of Proof More than any other state courts, the California courts believed that physicians were engaged in a "conspiracy of silence" which prevented injured patients from obtaining justice. Melvin Belli, a plaintiffs' lawyer from San Francisco known as "The King of Torts," complained vociferously about the silence of doctors for years.263 Even some California physicians acknowledged the problem. One wrote, The patient-plaintiff sues the doctor defendant. For the sake of argument let's assume that patient's suit is meritorious. Can he win? Even today in many states the answer is more probably no than yes. Why? Because... even if his suit has merit, [he] is unable to find a competent physician willing to testify for him, and against a fellow physician.264 By the late 1950's the California court was exasperated by the problem. The concern was best expressed in Salgo v. Leland Stanford Jr. University.265 Noting that California had been strict in requiring expert testimony, the court went on to say, But gradually the courts awoke to the so-called "conspiracy of silence." No matter how lacking in skill or how negligent the medical man might be, it was almost impossible to get other medical men to testify adversely to him in litigation based on his alleged negligence. Not only would the guilty person thereby escape from civil liability for the wrong he had done, but his professional colleagues would take no steps to insure that the same results would not again occur at his hands. This fact, plus the fact that usually the patient is by reason of anesthesia or lack of medical knowledge in no position to know what occurred that resulted in harm to him, forced the courts to attempts to equalize the situation by in some cases placing the burden on the doctor of explaining what occurred in order to overcome an inference of negligence. Frequently expansion of the application of res ipsa has been explained simply as a response to the conspiracy of silence.266 The

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author of an article in the Hastings Law Journal wrote that the plaintiff "is often handicapped by the reluctance of doctors to testify against their brethren... The doctrine of res ipsa loquitur has proved to be an effective 'instrument' in aiding the plaintiff to overcome these obstacles."267 This is an oversimplification of the problem. The expansion of res ipsa is one attempt by the courts to deal with the rapid changes occurring in health care in the post war period. The courts were reacting to the significant changes which had occurred in the doctorpatient relationship. The malpractice case was no longer about an individual patient against an individual physician. Medicine had moved into the hospital, and now patients were cared for by teams of physicians and staff. Increasingly patient suits involved anesthesiologists, surgeons, interns, residents, nurses, technicians, and the administration of the hospital. The court recognized that all of these players had an interest in denying the malpractice plaintiff's right to recovery, and increasingly the courts attempted to tip the scales of justice toward the plaintiff. The California Court discovered a new way of interpreting the relationships of those who work in the hospital in the 1944 case Ybarra v. Spangard.268 The plaintiff had been placed under anesthesia during an appendectomy. When he awoke he discovered that his shoulder had been injured, though no one could explain how it had happened. He sought to recover using res ipsa, but this was difficult because traditionally the doctrine could only be used against someone who had sole control of the circumstances. Common law made it clear that a defendant's responsibility for an injury came from an absence of others who could have done it. In Ybarra the plaintiff had been under the control of several different persons during the course of the operation, then returned to his room, during the period before he regained consciousness. The Ybarra court determined that, A hospital today conducts a highly integrated system of activity, with many persons contributing their efforts. There may be, for example, preparation for surgery by nurses and interns who are employees of the hospital; administering of an anesthetic by a doctor who may be an employee of the

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Unhealed Wounds hospital, an employee of the operating surgeon, or an independent contractor; performance of an operation by a surgeon and assistants who may be his employees, employees of the hospital, or independent contractors; and post-surgical care by the surgeon, a hospital physician, and nurses. The number of those in whose case the patient in placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm.269

This is a significant expansion of the law of res ipsa. Most legal authorities had stated that as a matter of law the doctrine could only apply if the plaintiff could show that the instrumentality causing his injury was in the continuous and exclusive control of a single defendant. The courts expanded the doctrine specifically in response to a change in the delivery of care. This expansion of the doctrine held, and was adopted by courts around the nation.270 Following the adoption of this expansion by the Ohio court Cleveland attorney Julien Renswick wrote, [M]ultiple medical defendants, though having separate identities in that the operating physicians and the anesthetists are ordinarily treated as independent contractors rather than employees of the hospital, nevertheless have an extremely close relationship with each other and the hospital in the care and treatment they jointly perform on behalf of the plaintiffpatient. The operating doctor is extended staff privileges at the hospital only after being rigidly screened by hospital officials. The privilege of using hospital facilities is not afforded to all physicians. Frequently a doctor has operating privileges at but one hospital, and seldom more than a very few. Likewise, the anesthetist typically limits his services to a small number of hospitals. During the course of an operation, aside from the operating physician and the anesthetist, there are usually nurses present who are in the general employ of the hospital. The business of taking a patient from his room to the sites of the operation, thence to the recovery room, and thence to his own room is a highly complex operation which requires the closest of cooperation and coordination among physicians and the hospital. Therefore, one does not find that separateness

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and independence of operation which ordinarily characterizes independent contractors or the activity of most joints tort feasors who are sued jointly as defendants.271 Renswick spells out the inter-connectivity occurring in hospitals. Hospitals determine who works within, be they contractor or employee, and the contractors (doctors) rarely work anywhere else. At the same time, the service provided to the patient is a service provided by dozens of people within the hospital, all of whom have an interconnected relationship with the hospital and one another.272 Courts were not impressed with the other implication of Ybarra: that all patients who were unconscious during their medical care had a right to sue under the doctrine of res ipsa. The idea quickly faded. So many procedures required patient anesthetization that this interpretation of the doctrine would have opened a floodgate of litigation. The court stepped back from this precipice early on. The California Court's next expansion of the doctrine, to include cases in which the injury from the procedure was extremely rare, was also one which had a limited life span.

Ripples from Res Ipsa During the 1950's health care professionals had cause for concern. The expert witness requirement had been weakened. Plaintiff's lawyers were finding new ways of bringing cases, and of winning them. One plaintiff sought damages for "cancerophobia" and won. In the opinion the court wrote, "This case is somewhat novel, of course, in that it appears to be the first case in which a recovery has been allowed against the original wrongdoer for purely mental sufferings arising from information the plaintiff received from a doctor to whom she went for treatment of the original injury." The plaintiff had gone to the physician with a diathermy burn and the physician had told her to return every six months for an examination for if she did not do so she "might get cancer."273 While the California Court was expanding res ipsa, the Massachusetts Court took a different approach toward piercing the "conspiracy of silence." The court allowed plaintiffs to use medical textbooks as evidence of the "standard of care," obviating the need for

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expert testimony. This fundamentally changed the definition of the standard of care. The Pike court had explicitly formulated the standard of care as a local standard. Textbooks could not tell the court anything about the standard of care in a given locality. They could only provide information on what the authors of the book believed to be the proper way of doing a procedure. This shift away from a strict interpretation of "locality" started in the 1920s. With Chesley v. Durant274 the Massachusetts court revived the idea of similar localities and then maintained that interpretation.275 But in 1949 Massachusetts enacted legislation which created a new exception to the hearsay rule of evidence.276 The new legislation allowed "certain statements of fact or opinion contained in published treatises, periodicals, books and pamphlets" to be admitted as evidence.277 This created new problems for the general practitioner. No longer could the defense argue that only general practitioners from the locality, or similar localities could be allowed to testify. Now, through his writing, a physician from another locality could "testify" against a general practitioner. Even if this author was a specialist, his writings could be used to define the standard of care for a given procedure. This would produce a remarkably different result than California's expansion of res ipsa. In California, medical societies responded to the courts condemnation of the conspiracy of silence with new programs designed to ease a justly wronged patient's path to compensation. In the north, medical societies from over 100 counties formed boards which would hear malpractice complaints prior to their court dates. The first and most visible of these was the Alameda Contra Costa Medical Association which worked with the American Mutual Liability Insurance Company of Boston. Its program had two principles: evaluation of every claim, and action based on the merits of the claim. If the evaluation determined fault on the part of the physician, then "just and prompt financial remuneration would be made to the defendant."278 This was a specific response from the medical profession to plaintiffs' inability to secure malpractice cases. Both states took action based on specific goals. The goal in California was to break the conspiracy of silence. Some argued that it went even farther and created a "liability without fault." One author wrote,

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It is therefore important that California res ipsa be recognized for what it is: a declaration of public policy - garbed in the sheep's clothing of res ipsa loquitur - to the effect that, because medical men are too close-mouthed, a physician shall be treated like a common carrier and shall be liable for a bad result unless the jury may choose to exonerate him. Otherwise translated, this means that it is much better for society to err by damning blameless surgeons with the stigma of malpractice (and with all the attendant consequences to the medical profession) than to err by permitting one worthy plaintiff to go unrecompensed.279 While this is a harsh depiction of the policy goal, it has some truth to it. The California res ipsa law, at its most expanded, led to a rule in which the physician was assumed to be at fault, unless he was able to demonstrate that he was not. In order to demonstrate his lack of culpability, the defendant-doctor was required to prove a negative: that there was no negligence. This was too difficult, if not impossible for most defendants. At best they could come up with scenarios which could have led to the patient's injury, and hope that these would satisfy a jury. The Massachusetts statute had a different social policy implication, though it is one which was never explicitly recognized. Pike had established a standard of care, but that standard was extremely limited. The patient was not given much power to obtain quality medical care under this rule. In one case, a patient in Charlestown, a section of Boston, was not allowed to bring in testimony from physicians in Greater Boston.280 Physicians in Charlestown were not expected to care for their patients with the same skill as those in Boston, home of the medical schools of Tufts, Harvard, and Boston University. While practitioners were licensed at the state level, and specialists certified at the national level, the patient could only expect the quality of care given at the most local level. The legislature determined that this was not equitable.281 This is the moment in which an element of malpractice law aids in the effort to standardize medicine nationally. If a physician must demonstrate that he practiced at the level of care outlined in a medical textbook, he is being expected to practice on a par with physicians

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across the nation. California wanted to weight the scales of justice in favor of the patient by burdening the physician with an expectation to prove no negligence. Massachusetts simply widened the geographic scale, and eliminated hedging by witnesses.282 Courts and legislatures began to recognize the changing nature of care following World War II. Before the war the courts had recognized that the locus of care had shifted from the home to the hospital.283 Courts ruled that hospitals must take responsibility for the acts of their employees, such as nurses and technicians284, under the doctrine of respondeat superior. In the 1950s the California courts recognized that medical care was a continuous mode of treatment in which a patient is passed from one health care professional to the next.285 As the courts had made the hospital liable for the acts of its employees, the California court recognized that the hospital and the physicians together controlled the care of a patient. The California court ruled that because defendants shared the control of a patient, the rule of res ipsa could be applied even with multiple defendants. In a surgery case the patient could sue the surgeon, anesthesiologist and the hospital, because the court recognized that they shared control of the patient's care.286 In Massachusetts, the legislature pushed the standard of care to a national scale, and towards textbook quality.

The Physician Response The expansion of liability, and the increasing use of records meant that physicians would need to rely on malpractice insurance more than ever. The battle against malpractice insurance was long over, and now physicians and medical societies focused on obtaining full and fair protection at the cheapest rates. Physicians learned more about policies as insurance representatives became involved with their organizations and wrote journal articles explaining insurance. They worried about the nature of policies, how much coverage they required, and the cost of that coverage. Purchasing insurance through group contracts with their state societies, or local societies organized policies decreased their anxiety. Some specialists could buy into group policies through their specialty organizations as well. Unfortunately some physicians discovered no policy fully insured them against every possible recovery in suit. Malpractice policies are similar to many other insurance policies in that there are three major sections to the policy: agreements,

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exclusions, and conditions. The company agrees to pay damages arising out of malpractice, and to provide a defense against such a suit. Companies usually excluded insuring any partner for liability, unless an additional premium was paid. By the 1950's most policies required the physician to consent to any settlement, although if the physician refused to approve a settlement offer when it was recommended by the company the insurance would automatically be limited to the settlement offer. In the event a jury awarded more than the settlement offer, the insurer would pay only up to the settlement amount, leaving the physician to pay the remainder. The exclusions listed what the policy did not apply to, usually injury arising from a criminal act and injuries resulting from the physician's intoxication. Frequently policies excluded the use of x-ray equipment unless an additional premium was paid. Conditions included policy limits, the duty of the insured to notify the company in the event of a suit, and to cooperate in the defense.287 When a physician sued an insurance company it usually involved the insurer’s refusal to pay for injuries that did not directly result from caring for the patient. In American Policyholders Insurance Company v. Michota288 the insurer contended that its policy did not cover the defendant's actions which resulted in suit. The defendant, a chiropodist, had instructed his patient to sit in a hydraulic chair. Because he had forgotten to lock the chair in position before she sat in it, the chair suddenly swiveled and threw her onto the floor and injured her. The insurer argued that this was not part of the professional service offered by the physician. The court ruled in favor of the physician. A similar result was obtained in a suit against an osteopath who failed to set the safety catch on his examining table, which led to the table collapsing under the patient.289 Insurers also occasionally balked at insuring physicians for libel. Frequently libel was written into the agreement of the policy, and courts generally agreed with the Colorado State Supreme Court's ruling that insurers must cover for libel, so long as the circumstances of the libel fell within the physician's professional practice. One physician had written on a death certificate under the cause of death: "The patient died from criminal neglect in the [Court record removes the name] Asylum." Three years later the physician made a similar remark to a local newspaper. The asylum sued for libel, and the insurer was willing to pay for the defense of the first instance, but not the second. The court

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ruled that the doctor's notes on the certificate were "an allowable elaboration of the insured's full diagnosis of the causes of death," but that the statements to the press were not, and therefore the insurer was not liable for the damages resulting from the physician's comments to the newspaper.290 When a physician had treated a patient over an extended period of time, and the patient's injury was deemed to be the result of that entire course of treatment, insurers might refuse to pay on the grounds that they had only insured the defendant during a portion of the treatment period. The courts did not rule on this complex issue uniformly, because the facts of each case were so pertinent to decisions determining the extent of the insurer's liability. In one case a patient had been treated 41 times before the policy was issued, and 14 times after. The court ruled that only the jury could determine whether the physician injured the patient before or after the policy went into effect.291 In a similar case, a physician began treating a patient on February 20, and obtained policy coverage March 18. He treated the patient for 6 weeks following the issuance of the policy. The court ruled that the insurer was obligated to pay for the defense because the plaintiff in the malpractice case had expressly charged that there was malpractice during the period in which the policy was in force.292 Physicians who had guaranteed a result and were subsequently sued for breach of contract had no chance of help from the insurance company. Nevertheless, facing judgments for damages, some of these physicians sued their insurers in hopes of some payment. These hopes were inevitably dashed.293 One court wrote, "It should be obvious that insurance coverage for claims arising out of 'malpractice, error or mistake,' is clearly legally distinguishable from coverage for breach of contract."294 Those physicians who failed to disclose all the information about the case to the insurance company nullified their insurers' obligation as well. Judge Cardozo wrote with his usual eloquence and succinctness, "Cooperation with the insurer is one of the conditions of the policy. When the condition was broken, the policy was at an end if the insurer so elected."295 The same held true when a physician misrepresented himself to the insurance company, perhaps saying he was a member in good standing of the state society.296 In cases in which the physician was found liable not only for negligence, but for a criminal act the insurer was frequently absolved of responsibility for payment.297 For example, physicians who failed to obtain the proper consent prior to procedure could lose their insurance protection because

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the patient might sue under the grounds of assault and battery and as this was a criminal act courts generally allowed the insurance company to bow out.298 Insurers wanted to make the physicians understand that despite these limitations to the policies, their intent was to write the most effective policies possible, and that this was no easy task. In 1959 the AMA surveyed 22 insurers who issued 80% of all policies. Insurers were given 14 hypothetical examples of malpractice actions and asked if they would cover under the circumstances. All of the insurers made it clear that their answers to the hypotheticals could not be construed as defining what their policies would cover. One insurer wrote back, "Consider, if you will, the consternation that would result if you prepared 14 different sets of symptoms representing 14 fine-line medical cases and asked a representative group of doctors what they would do in each instance. I am sure that any replies which you would receive would be full of 'ifs' 'ands' and 'buts.' Policy drafting is no more an exact science than medicine."299 The relationship between coverage and premiums created an inexactitude in the setting of rates as well. As explained earlier, malpractice insurance created special problems for actuarials. They had difficulty predicting the physicians’ liability due both to patients suing some time after the injury, and to the rapidly increasing size of awards. For their part, physicians agreed that the cost of the insurance was too high, and had difficulty choosing a high premium product, even when it provided the necessary amount of coverage. One physician pointed out, "Judgments in the professional liability cases have reached the $250,000 mark. However remote the possibility, is it wise to be satisfied with, say, $5000 maximum professional liability coverage?"300 Nevertheless, the cost of a policy for $5000 was far less than one for $250,000 and physicians would need to be convinced to spend the extra money. In 1951 a three year policy with up to $15,000 in coverage cost $67.50 while a policy with ten times the coverage, $200,000, cost twice as much, at $135.00.301 By 1959 the recommended coverage amount was $300,000.302 Physicians’ distaste for costly insurance spurred them to lobby for more insurance regulations.303 There was virtually no regulation of professional liability insurance premiums prior to 1950. By the midfifties, 43 states regulated the prices of liability insurance and 9 of these

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states dictated the rates through a department or delegated authority.304 A study by the California Medical Association demonstrated that not only were the rates charged by the insurance companies fair, "in no instance was the board able to find evidence of even a reasonable profit" and in fact statistics showed that "the insurance coverage was carried at a financial loss."305 Throughout it all, physicians continued to complain about the problem of malpractice, particularly rising insurance rates. The watchwords continued to be "No one is immune to a malpractice suit."306 One article referred to malpractice as "An occupational hazard," and pointed out that "Even an Indian medicine man has had an adverse malpractice verdict."307 At a meeting of the International College of Surgeons attorneys were denigrated as "Brooklyn cowboys with blank cartridges," and there was a general belief that not only were the suits unfair, but that the physicians who were sued were typically "above the average ... in skill, experience, and professional standing."308 Physicians complained that once insurance companies took their dues they were still reluctant to pay out in damages, or alternatively, that they were too quick to push for settlement.309 When insurers announced rate increases physicians argued that they were being "'taken and that the announced increases were simply the result of concerted action motivated by selfish interests on the part of the underwriters."310 When insurance underwriters went bankrupt or discontinued issuing malpractice policies because of lack of profitability, physicians complained of callousness. When the companies agreed to continue issuing the policies, but only if physicians would agree to buy their additional insurance, such as home, and life, from the same organization, physicians railed against their "monopolistic" practices. Physicians complained about other physicians, lawyers, and patients. The patients who sued were consistently referred to as "dissatisfied" and "litigious." In the constant stream of articles advising physicians how to avoid suits, authors always pointed out that the patient had responsibilities as well. Patients were expected to be attentive, understanding and compliant. One physician wrote, "The patient's responsibility to his physician is to carry out such orders as are given him as far as possible. He should try and understand the diagnosis, if this be given, and the prognosis, and what can reasonably be expected of the treatment that has been outlined by his physician."311

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In the greatest irony of malpractice these authors placed the burden of blame on the doctors who complained about a previous physician's work. No one, not even attorneys who wrote on the subject saw the irony in arguing that the cause was the complaint of the second doctor, rather than the poor care of the first. Some others did try to explain themselves a bit. One wrote, ...one of the most important causes of malpractice accusations is careless and unwarranted criticisms of another physicians work. It is easy enough to say 'who did this, why did he do it,' and , 'did a physician or a surgeon do this or that.' The second physician who was called upon in the case or who was called upon to evaluate anther's work probably knows most of the circumstances, but, in many cases, does not know all of the circumstances which may have led to a result which may be less than what was expected. Perhaps the patient did not tell the entire truth in outlining his history. A careless slip of the tongue, a raised eyebrow, or even a quizzical nod of the head, may at times, be enough to initiate a feeling of distrust on the part of a patient towards his original physician.312 The authors argue that patients did not sue because of possible medical error, but because of dissatisfaction with the doctor-patient interaction. In an even greater irony, one group of physicians interested in this problem secretly recorded patients as they talked about their medical experiences. In an attempt to discover how to treat patients in a more psychologically effective way (effective not in better care, but in suit reduction) these researchers effectively trounced on the patients' rights. The authors of the study, published in the Bulletin of the American College of Physicians, proudly explained their research technique. During the research "midget tape-recorders were concealed in waiting rooms, hospital rooms, bridge tables and other places where people talked about their medical experiences."313 Their results showed that people felt that their doctors were "indifferent" and "impersonal." The AMA in another survey discovered that 87% of those questioned felt they had a personal relationship with their family doctor, but only 54% thought that this was true of their other doctors.314 It occurred to

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physicians that perhaps the way to decrease suits would be to appeal to patient psychology.315 One lawyer wrote to physicians, "Wounded feelings of patients create more litigation than do actual invasions of legal rights."316 Now articles could ask for more from physicians than that they cease from disparaging the work of earlier doctors. Articles specifically called for "warm, helpful" office assistants, up-to date waiting rooms and office equipment, and efficient yet humane billing procedures. In an effort to improve the patient's overall experience of the medical encounter, attention to detail was important, and one author pointed out that "in busy offices it is common for the patient to be called by the office nurse from a comfortable waiting room and told to disrobe and wait in a barren examining room where nothing at all is provided for his comfort or interest." The author argued that this type of practice had to stop, and office waiting rooms needed to be equipped with comfortable chairs and current magazines. These were the necessary measures for the prevention of malpractice claims.317 Physicians wanted claims reduced not just in number, but in size. Many authors referred to the size of awards being granted. One wrote of the largest awards: "$650,000 in a personal injury case; and a settlement was made in another case against a physician for $100,000. Several suits have been filed in California for $100,000 or more."318 In some instances these potential or actual awards are referred to in order to make a point about the necessity of sufficient insurance, but far more often they served to initiate a discussion of the severity of the malpractice problem. The details of the case were never given, so that the reader had no idea whether the patient awarded such high sums sued for lack of x-ray, or wrongful death. Finally, and most importantly, physicians complained about the changes in legislation and court doctrines they believed led to the increase in suits. Articles discussed the lengthened statutes of limitation which allowed patients to sue within a year of their discovery of malpractice, rather than within a year of the occurrence of the negligence. Physicians also complained about expanded interpretations of respondeat superior and res ipsa loquitur.

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Studies and Joint Actions Throughout the century state and local societies had organized medical defense and group insurance plans, but during the fifties the problem of malpractice was taken up by the national societies for the first time. The AMA and the AHA had three responses to the malpractice crisis and the continuing integration of care in the hospital. First, they organized extensive studies of the problem, including a retrospective of cases and a national survey of physician experience with malpractice. Second, they informed their membership of the need for a host of forms designed to record patient consent, and move responsibility for decision-making from the physicians and hospital onto the patient. Finally, the two organizations organized a joint committee to study the malpractice problem and make recommendations on how to more effectively prevent suits.

Suits In 1955 JAMA published "The history of professional liability suits in the United States," by Andrew Sandor, a practicing otolaryngologist and an attorney for the AMA. Sandor, a graduate of the University of Illinois College of Medicine, collected all of the malpractice appeals cases decided in the higher courts of the United States from 1794-1955. He eliminated all cases involving anyone outside of allopathic medicine, including nurses and technicians, and in his analysis focused on the 20th century. Sandor used his research to portray the typical malpractice case from 1946 to 1955. The typical physician involved in a suit would have been practicing about ten years. He (only three female physicians were sued during the period) would live in a town with a population between 10 and 25 thousand.319 The negligent act most likely involved a surgery or a fracture, leaving a foreign body in the operative field being the most common surgical error, and failure to x-ray being the most common error in the treatment of a fracture.320 In 70% of the cases the patient/plaintiff was female, a number partially skewed by the number of obstetrics cases. Sandor noted that little had changed since the beginning of the century. Even the other most common cases remained the same: x-ray

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burns, and obstetrics (especially abandonment which accounted for 42% of the obstetrical cases).

Insurance The AMA recognized a problem with malpractice insurance in 1954 when the Board of Trustees asked the Law Department to assess the association's actions regarding "professional liability and to plan and initiate any additional studies."321 The department took four measures. • • •

•

Analyzed pertinent state statutes dealing with insurance rates and regulations and sent out questionnaires to all state insurance commissioners. Sent a questionnaire to each of the national specialist societies asking about their insurance coverage. Sent out a questionnaire to each of the state societies asking about experience with insurance carriers, knowledge of group coverage, common causes of claims, and success of claims prevention programs. Made personal visits to the New York, California, Oregon, and Utah medical societies.

The department discovered that the states had similar requirements of insurers, except for Montana and Washington which exercised no control over professional liability insurance rates. States required insurers to file all information concerning coverage and rates with the state insurance commissioner who would disapprove any problem plans within a certain period. Of the twelve national medical societies, five offered or endorsed insurance for their membership.322 Only 30 of the 49 state societies responded to the questionnaire. 6 of these had group insurance plans, and 18 had some sort of medical defense plan. State societies listed their most common causes of suits were as follows: 1. x-ray burns 2. foreign body left in the patient after surgery 3. bad result after orthopedic surgery 4. lack of consent

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5. improper prescription of drugs 6. criticism of one physician by another 7. excessive fees 8. poor physician patient relationship These results provide little information because the response was erratic. While the first 5 causes are the actual injuries complained of by the patient, the last three are assumptions about why the patient chose to sue. The states varied widely in their assessment of the claims. One state wrote that 90% of the claims had merit while another put the figure at 30%.

Responsibility of Outliers In 1956 JAMA began a weekly series of articles on malpractice which focused on reports from the Legal Department on the progress and results of its studies, as well as the work of the state committees. In June JAMA published a study on the effectiveness of the AlemedaContra Costa Medical Association's defense plan. The author, Joseph Sadusk was the Chairman of the Medical Review and Advisory Board of the California Medical Association. He had attended Johns Hopkins medical school, received his license in 1948, and later became a member of the American Board of Internal Medicine. The plan went into effect in 1946, and Sadusk had studied the following 9 years. The association grew from 700 physicians in 1946, to 1500 in 1954. During the period 515 complaints and 94 suits were filed against members. Of the 94 suits 2 were lost, 15 were dismissed, 18 were settled, 21 were won, and 38 were still pending. Suits took up to 4 years to dispose of. One difficulty of assessing the incidence of suits among a population becomes clear in the Sadusk study. In a close analysis of 125 incidents (both complaints and suits) Sadusk discovered that 92 physicians had one incident, 10 physicians had two incidents, 3 physicians had three incidents and 1 physician had four incidents. Sadusk made his findings clear by saying, "The three physicians who incurred from two to four incidents each constitute only 1% of the county medical association membership but account for 27% of the damages filed, and 24% of the indemnity and expense paid out by the program."323 The four physicians with three or four incidents were

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responsible for 13% of the damages filed, 17% of the damages pending, and 3.5% of the damages and expense paid. Sadusk made no comment about the meaning of this, but his point is clear. A small percentage of physicians were practicing in a way which was costing the overall membership a great deal. He makes no mention of this in his conclusions, instead focusing on the factors which lead to suits. Surgery, orthopedics, and obstetrics-gynecology led the field in numbers of suits, and particular hospitals and certain individuals created more suits than others. Sadusk noted that the physician's age, sex, and location of practice had nothing to do with incidence of suits. While not stating it explicitly, Sadusk made it clear that the Society needed to note that certain hospitals and physicians practiced in such a way that they generated and lost suits. In 1963 the department made a second study of liability, and discovered that while suits had increased during the period, the number of physicians had risen by an equal amount. When weighted by population, the study found no increase in suits. In this study, the department estimated the risk of suit during each physician visit to be less than 3.7 ten-thousandths of 1%. The authors of the report concluded, "For the individual physician who is faced with a claim, particularly for the first time, the experience is traumatic. It is important, however, that the legal risks for physicians not be exaggerated. Every profession has its risks, and the risk of liability claims is one which must be borne by the medical profession."324 This directly contradicts the AMA's Committee on Medicolegal Problems report. The committee stressed that surveys, which they did not cite, put the incidence of malpractice suits among physicians at 1 in 4, and goes on to discuss the causes of suits. Like articles throughout the century this article complains about public attitudes, juries, inflation, and the courts, but makes no attempt to demonstrate causation. The authors can only say that the above factors "undoubtedly contribute.”325

Epidemiology of Suits One year later the journal published the work of Sidney Shindell, a professor in the Department of Social and Preventative Medicine at the University of Pittsburgh. Shindell's title indicates the dramatic change his article signaled: "'Epidemiology' of professional liability losses."

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Shindell sought to bring new rigor to the study of malpractice, and argued that researching malpractice using appeals cases was like "studying a disease via death certificates where the case fatality rate is unknown."326 Other methods such a questionnaires to physicians, or examining data from individual cases, also failed to answer the questions Shindell believed were most important, "What is the likelihood of a claim against a practitioner for malpractice? To what extent has the risk changed in recent years? What factors can one identify which seem to account for the wide variation in experience from state to state?"327 Shindell employed a radically different method for assessing the malpractice situation. Noting that the definition of a "suit" could range from a patient's idle threat to a Supreme Court decision, Shindell argued that this was not an effective way to think about the problem. Instead, he believed that the most statistically significant and measurable unit is the money paid out by insurers. He was able to convince the National Bureau of Casualty Underwriters to provide him with the data from all the insurers reporting to it. The data was presented in such a way as to hide the experience of any individual company, so that the NBCU was protecting the rights of its members. 45 firms reported to the NBCU, accounting for nearly 50% of all policies. Insurers expected physicians to report any possibilities of claims to them as soon as possible. Shindell reported that a third of these reports never progressed any further. In other words, although the physician reported an incident which could lead to a suit, the patient never initiated any action whatsoever. While Shindell noted that the losses per insured physician were rising far more rapidly than medical costs or the consumer price index, he also reported that the median loss was below $5000. He writes, "It can be seen that while one hears considerable publicity about the $100,000 or $200,000 case, the average case in the median state results in an award of approximately $5000 to the claimant who prevails against the insured physician." 328 Despite Shindell's extensive data set, and his relatively sophisticated statistical techniques, he was unable to determine why suits were increasing, nor why they varied so much from state to state. There was no correlation with charitable immunity status, number of physicians in the population, rate of hospital admissions, median family

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income, education, number of lawyers, or the number of bodily injury claims. The closest correlation was for the per diem hospital expense and length of stay, but even these had correlation coefficients of only 0.6 and 0.5 respectively. While commentators had argued for years that malpractice was caused by discouraging physicians, too many lawyers, easing of legal standards, etc., Shindell had to conclude that "As a profession we have not yet been able to develop the knowledge concerning professional liability risks which would enable intelligent application of preventative measures."329 Whether it studied the malpractice problem through surveys of their physicians, an examination of suits, or an "epidemiology" of insurance losses the AMA was unable to produce a reason for the increase in suits.

Societies Worry, Physicians Don't The most significant of all of the studies of this period was that done by the AMA's Medico-Legal department in 1956. The department sent out 7,577 questionnaires to a sample population of AMA members, of which 5,341 were returned for 71.2% of the sampling. The study's results stunned the department and the AMA. While malpractice appeals decisions had been increasing, and insurance rates had risen due to an increase in suits, the members of the societies did not seem to notice. Over 70% of the respondents thought the number of suits had decreased, remained stable, or had no opinion on the matter. 92.3% of the physicians reported that they had professional liability insurance, and of these 56% believed that the cost of their policy was reasonable. The most surprising result of the survey was the number of members who wrote that they thought that their state should have a prevention program. In the states in which societies had programs a majority of members responded that there was no program. The author of the study concluded that, "the programs in effect in most of the states are either inadequate, or not sufficiently publicized."330 Physicians were less concerned with malpractice than the AMA had imagined. Among the sample, only 14% had ever been threatened with a suit during the course of their careers, though in California, 24% had been threatened or sued during their careers. In another study, a Connecticut physician and attorney Robert Wycoff interviewed 58 of

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the 69 doctors in the state who had been sued during the preceding decade, 4 of whom had been sued twice. He noted that those sued were "indistinguishable from their colleagues," and that a large number of them were chiefs of services and even chiefs of staffs in high quality hospitals. 25 of the doctors said that the newspapers had reported on their cases. Most interestingly none of the physicians reported any financial loss from the suits (though 19 suits resulted in payment), and 52 of the doctors reported that their practice did not suffer from the suit. Only 5 thought that the personal effects of the suit were at all significant, 53 had no change in their insurance policy, and none lost their privileges or license. Wycoff concluded, "Objectively, the effects of a malpractice suit upon a physician appear to be much less than generally believed."

Conclusion Although doctors seemed less than concerned about suits, the AMA believed the incidence of suits could be reduced through closer control of the medical record. Both the AMA and the AHA advised hospitals to increase their use of signed forms, and ultimately a series of articles were written for publication in many of the state journals. Physicians and administrators were told of the need for forms indicating the patient's standing as a minor, forms stating the need for a therapeutic abortion, and forms for the consent to the disposal of amputated limbs and organs. An article in the Wisconsin Medical Journal indicates the need for over forty forms, and provides examples of how each should be formatted.331 During this period the AMA also attempted to rally the state societies and its counterpart the AHA into joint efforts aimed at decreasing suits. The studies by the AMA and constituent societies demonstrated that 70% of malpractice claims arose from incidents which occurred in hospitals. The California Hospital Association organized a group insurance program for hospitals, and its research led it to conclude that work with physician organizations would create the most opportunities for suit reduction. In 1957 the AMA and the AHA announced a joint committee on professional liability.332 The joint committee produced a series of films on aspects of the professional liability problem. The first No Margin for Error,

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premiered in 1959. It was "directed not only to physician professional liability but also to the hospital and its employees. The joint nature of such problems has been emphasized."333 The joint committee also worked to organize Joint Medicolegal Education Committees within hospitals. The Committees charter indicated a four part mission: 1. view patient care from the specific standpoint of patient safety 2. improve patient care 3. prevent accidental injury to patients, and 4. reduce grievances, claims, and suits against the hospital, its employees, and members of its medical staff.334 In hospitals which implemented the program the committee reported changes in practice which substantially reduced the possibility of injury and harm to patients. The committee reported, "What is probably more important, an increasing number of physicians and others involved in patient care are giving evidence of a growing awareness of the need to prevent injury or harm to patients during the course of medical care and thus to prevent patient grievances, claims, and suits."335 For the first time in the century, the approach to reducing malpractice suits centered on the improvement of care, and the reduction of the possibility of accident and error. By 1960 the malpractice problem had been re-framed. Courts altered their ideas about how cases should be tried, physician leaders changed their response to suits, and physicians changed their perceptions. As the national associations - the AMA and AHA examined the problem they discovered some disconcerting news. Commentators had complained about unfair and overpriced insurance, but the physician members indicated to surveyors that they were happy with their insurance companies and premiums. Commentators were outraged by the severity of the enormous awards, citing numbers up to $650,000 dollars, but an "epidemiology" of awards indicated that the median award was $5000 dollars. Commentators had long said that a malpractice claim was an incredible hardship for a physician and could ruin his practice, but a study of physicians who had been sued revealed that none of them suffered financial damage, and only a few were even upset by the suit. Some even told the analyst that the suit had improved

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their practice. Finally, when physicians were asked about the defense activities of their medical societies, they revealed that they did not even know that there was any defense activity. When researchers attempted to pinpoint the cause of the increase in suits they came up empty handed. The rate of increase in the number of suits was almost parallel to the increase in general and physician population. There seemed to be no correlation with patient incomes, population, number of lawyers or physicians with suits. Why the outrage over suits? If each medical encounter had only a .00037% chance of leading to a suit why were state societies, the AMA, and the AHA spending so much time on the problem? Physician leaders sensed that physicians had lost control of liability. These leaders were often chief of staff of hospitals, or intimately involved with teaching hospitals. They witnessed (and were often named in) suits against these institutions, and thus saw the full burden of malpractice suits for both hospitals and physicians. They wanted control in medicine, but they saw that control eroded by suing patients, plaintiff's attorneys, and the courts. Res ipsa loquitur appears in more of their articles about malpractice than any other single issue. Physicians had been on the retreat throughout the century. First they formed defense committees, then bought insurance, and finally they agreed that there might actually be cases in which a physician was obviously at fault. But under res ipsa, the profession's control over the decision of which physicians had committed negligence - created by the requirement of expert testimony - was lost. Courts had become dissatisfied with the care standard set forth in Pike v. Honsinger. In that landmark decision the New York State Court of Appeals set forth a system for determining the standard of care which required that physicians testify as to that standard within their locality. The inability of plaintiffs to obtain testimony from local physicians, and the difficulty of getting those few physicians who would testify to firmly say that another physician's care was substandard moved the courts to alter the system. Courts did not want plaintiff's to lose suits when the negligence of the physician was obvious to the layman. The courts recognized a broader standard of care than that which needed physician testimony.

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Why physicians were so reluctant to set standards is unclear. Only one writer, Joseph Sadusk, even mentions the fact that 1% of the physicians are responsible for more than 25% of the cases and damages. Given that physicians were not punished in any way by the profession, the only way to punish a doctor who continually committed negligence was to sue. But with the conspiracy of silence, not even this was possible. Physician leaders were upset about res ipsa because it signaled that the courts were going to push them into taking action against their own membership. The erosion of physician leadership and control was exacerbated by the res ipsa decisions. The courts intentionally eroded that leadership, which they saw as having failed to redress the variations in the delivery of care. The work of the Alameda Contra Costa Medical Association and 100 other northern California societies demonstrate the effectiveness of the court’s power play. The societies set up review boards which worked with the insurance company to review cases, and determined whether or not a claim was viable. In the event that the board regarded a claim as legitimate, it recommended to the insurer to settle the claim. This allowed the association to focus on defending only suits it could win, and to compensate patients who had suffered a legitimate injury. In twenty years a variety of forces had shifted the battle lines in malpractice. Third party payers had required hospitals to keep better records, and that increase in documentation, coupled with the courts expansion of liability helped increase the rate of suits. While physicians remained unconcerned, the AHA (which discovered that 70% of suits involved the hospital) and the AMA became more shrill in their worries. Ultimately they followed the concept of review boards with the more preventative approach of attempting to standardize procedures and practices within hospitals . As the 1960s approached the public was made more aware of the malpractice problem, and even physicians began to speak out about the problem of physician negligence and error. A search for causes continued, and broadened to examine larger social forces. Physicians took new steps to combat malpractice, but their disproportionate sense of outrage, and overwhelmingly emotional response to suits led them to chase a mythical dragon as they sought legislative solutions to the problem.

CHAPTER 4:

Recognition of Conditions

Until the late 1950s the mainstream press ignored malpractice, but during the 1960s malpractice became a dramatic story in which all the characters could be condemned: hospitals, attorneys, and even patients. Malpractice became a public issue, and by the end of the decade both the United States Senate and the Federal Department of Health, Education and Welfare had initiated investigations into what was now considered a "national crisis." Malpractice suits continued to increase at a dramatic rate during the period, though no one could explain why. Only the courts appeared to be unconcerned with the increase in suits. Instead of acting to limit these actions, the courts, continued to make it easier to successfully sue physicians and hospitals for negligence. They expanded the definition of the standard of care, increased the time a patient had to sue, and disallowed the immunity of public and charitable hospitals. The courts recognized that physicians were no longer restricted to only the medical knowledge of their locality, and that hospitals were now involved in the organization and direction of medical care. Ultimately the courts would take the most aggressive step of all: the dismantling of the locality rule. After decades of circling the wagons against suits, physician societies finally acknowledged physician error, and started to work toward reducing error and assuring that at least some injured patients received compensation. Hospitals, which had implemented forms a decade before, now started real procedural improvements including a simple count of sponges following an operation to assure that nothing had been left behind.

Malpractice Meets the Press Malpractice cases had long been reported on in local newspapers, but they did not reach in the national media until the 1960s. A long history of questioning physician ethics regarding unnecessary surgery, fee splitting and setting of fees came to a head in the late 1950s as the 129

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national press increasingly reported the negative side of the miracle medicine: iatrogenics, chart mix-ups, and uncaring specialists. At first this news was presented without editorial comment, but eventually news organizations put more spin on the information. The first major popular publication to report on a malpractice was Time magazine in 1941, when it covered a case in which "for the first time US. Medicolegal historians could remember, a physician of national prominence lost a large malpractice suit brought by a patient."336 Manhattan ear specialist Samuel Joseph Kopetsky had been treating musician Benjamin Schwartz for partial deafness for several years without any results. In 1937 Kopetsky suggested a delicate ear surgery, developed by Julius Lempert (who had been written up as a stellar physician in Time in 1940) which he had never tried before. Doctor Lempert checked in during the course of the operation, and told the court that at the time everything was in order, though Kopetsky was having difficulty with one of the three bones in the inner ear. An assistant in the operation claimed that Kopetsky had thrown the bone into the wastebasket. Lempert never came in to do the specific inner ear work that he had developed. The operation was stopped when Kopetsky noted that the right side of Schwartz's face was paralyzed. Following the operation Schwartz was left with a "drooped eyelid and distorted mouth," his ear ached, and his deafness had worsened so that he could no longer give concerts. The jury awarded Kopetsky $25,000. The article made no editorial comment about the case, although it did mention that "like most physicians" Kopetsky carried malpractice insurance. There was neither a sense that the suit was unjustified, nor that Kopetsky had been negligent. Time chose to run a story on malpractice, but did not make much of it. As the 1940s went on Time focused on the war doctor, and how physicians contributed to America, but in 1944 when 175 Manhattan physicians were temporarily suspended from working on workmen's compensation cases, Time made no secret of its editorial view. The physicians were convicted of racketeering in a scheme in which lawyers and insurance agents told injured patients which physician to visit, and then those physicians padded their fees, and prolonged treatment. A kickback was paid to the lawyer or insurance agent. In addition, physicians referred patients to

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labs which also overcharged, and then paid a kick back to the physicians. Unlike the dry 1941 article, Time opened with, "New Yorkers are beginning to wonder just how pure the boasted ethics of the medical profession really are," and then pointed out that of New York City's 16,000 physicians those "convicted of crooked dealing this year past the 1000 mark," but that their service in the military allowed many of these physicians to be excused.337 There is no explanation of this figure, and no mention of what laws these physicians may have broken, but there is a sense that Time's editors were beginning to regard the ethics of the medical profession to be little more than hot air. During the postwar period there was also a noticeable increase in articles on unnecessary surgery. The focus of these stories went from complaints that exploratory surgery was the result of "mental laziness and slipshod diagnosis"338 to accusations that "in many an operating room the cloak of surgery covers mayhem and even manslaughter."339 There were fears that too many appendixes and tonsils were removed due to misdiagnosis, and those fears were exacerbated in 1953 when Paul R. Hawley, the executive director of the American College of Surgeons, told U.S. News & World Report there was not only feesplitting going on among surgeons, but needless surgery as well.340 While other physicians had already gone on record on the problem, Hawley's standing garnered a great deal of attention.341 Hawley's revelations led to a new willingness on the part of the profession to discuss the problem. Several professional colleges and associations cooperated in Newsweek's study on unnecessary surgeries in 1957. Their was some consensus that physicians had not done enough in policing their own, and Newsweek put the story together in the most unflattering light possible. In addition to serving up a healthy dose of quotes from Hawley, the magazine featured a photo of Karl Menninger with the following quote as a caption, "Surgery affords a unique opportunity to conceal conscious or unconscious sadism. Yet surgeons do not need to repress their sadistic proclivities. They can sublimate them in an approved form of behavior."342 These articles on surgery led to articles which questioned all forms of patient care. The American Mercury put the spotlight on the conspiracy of silence with its article "Who protects the patient?" in 1950.343 The article noted that when a patient had been wronged in the

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hospital, no one, neither other physicians, nor nurses would be willing to come forward on his behalf. Readers were treated to stories of chart mix-ups which led to incorrect operations344, tales of iatrogenic illness345 and stereotypes of physicians as con-men. In the last the author created a typology of the slick methods by which physicians attempt to extort patients of their money.346 By the late 1950s the national press had laid out the groundwork for later stories on malpractice. The image of physicians had been damaged to the point where a story on the suffering of an injured patient would sell. Conversely, readers had been informed of many of the advances in medicine and the brilliant work of physicians. Individual pieces on malpractice became more frequent in the late 1950s, as magazines began running in depth reports on malpractice.347 The typical malpractice story contained many dramatic elements, but ultimately focused on two classic American themes: money and faith. Patients paid their physicians and had faith in physician concern and competence. Physicians worked hard for their money and this faith in their ability and did not appreciate having it questioned. Patient's feeling injured by their physicians shifted their faith to their lawyer and the legal system. Physicians, believing that a greedy patient and lawyer sought only quick money, also put their faith into the legal system, but insured that faith with money paid for an indemnity plan. In May 1958 the American Mercury published Darby Stranton's "What is malpractice?" which began with the story of a case in which a physician who recognized a patient's intolerance for penicillin, and yet continued to prescribe it to bad results. The physician lost the case and paid $15,000. Stranton discussed physician reluctance to admit to errors, and argued for better policing of the profession. On the other hand, he noted that "It is difficult for one not trained in medicine to appreciate the decisions that the doctor is called upon to make throughout every day of his practice."348 In conclusion Stranton sought to bring all of the parties in suits together. He writes, In brief, the doctor must recognize that the legal rules of negligence apply to him as well as to anyone. The patient must appreciate the fact that a failure of a cure, or even actual damages, do not constitute malpractice unless the doctor

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breaches a duty by failing to conform to the standards of his profession in his community. And the lawyer must be reminded that medicine is not an exact science, that many unfortunate results occur in the complete absence of negligence.349 In the spring of 1959 Milton Silverman of the Saturday Evening Post produced the most significant article on malpractice to date. This cover article, "Medicine's legal nightmare," begins "Only a nuisance thirty years ago, malpractice suits against doctors and hospitals today cost almost $50,000,000 a year. Result: embittered doctors cry foul, patients pay higher bills. Here are typical cases."350 The three part article started with a focus on the work of Melvin Belli, the "King of Torts," of whom the president of one local county medical society said "hanging is much too good for him. He should be made to suffer as we have suffered."351 Silverman interviewed many of the major figures: Belli, Hawley, Crawford Morris, Louis Regan, Joseph Sadusk, and the leaders of many state societies. He reported on the studies by state societies and the AMA and AHA and presented reviews of the "conspiracy of silence," "defensive medicine," difficult patients, rushed physicians, nuisance suits, unnecessary surgery, and many other elements of the malpractice problem. Silverman concluded with, There are, therefore, two villains - on the one hand, the suithappy patients, and on the other, the suit inviting doctors. There are relatively few of each. If they could be isolated someplace and allowed to assail each other with lawsuits, lost sponges, or whatever weapons came to hand, many would consider this a happy solution.352 Silverman closed with a quote from Sadusk that "Throughout the medical profession there is a growing fear that any doctor can be branded as negligent even though he is not negligent. There is a growing fear among patients that all doctors are incompetent, and that no doctor can be trusted... This is what doctors and patients together must solve."353

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By the 1960's attempts at objectivity waned, and authors would attack either physician error, patient intransigence, or attorney greed. The first in-depth piece in the new era of blame was about the case of actor Roger Smith, co-star of the television series 77 Sunset Strip. The Look magazine article by Bill Donaldson indicted the medical profession. Smith had been carrying a hi-fi set to his car when he tripped and fell, hitting his chin against the set. His wife found him collapsed and bleeding, got him to his feet and brought him into the house. He complained of a headache and began vomiting. During the next few weeks North Hollywood surgeon Arthur C. Stirling treated Smith for a neck sprain. The headaches persisted and at one point Stirling injected Xylocaine into Smith's head. This convinced his wife to have neurosurgeon Frederick Amerogen take over Smith's case. Amerogen continued to prescribe pain relievers. Two days later Smith's right arm became numb, and he became unable to speak. His wife found him in their bedroom, head in his hands, moaning. She called Amerogen, who checked Smith into a sanitarium for psychiatric evaluation. The psychiatrist, Robert P. Sedgewick, who also was a neurologist, through conversations with Smith and his wife, determined that Smith had no psychological problem, but that in fact the fall had caused brain damage. He took a spinal tap, which showed blood, and called in a neurosurgeon who operated and removed a 5 ounce subdural hematoma. The article featured an interesting device which pushed the reader into viewing Smith's original care as negligent. Following statements by Smith's physicians Donaldson, the author, put in parenthetical "corrections." When the Stirling said, "I happen to have had some neurological training myself," Donaldson added "(Dr. Stirling's neurological training consisted of spine-and-brain-injury cases on which he assisted while he was an intern and resident surgeon in the early 1940s. He is not an accredited neurologist or neurosurgeon)."354 Throughout the article, whenever Stirling or Amrogen meets with Smith, Donaldson mentions no spinal tap was done, thereby setting up his punchline. When Stirling chooses to inject Xylocaine into Smith's head, Donaldson adds parenthetically, "(Three outstanding neurosurgeons told me that, with the classic symptoms of recurrent headache and vomiting, it is unthinkable that a spinal tap was not made

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by this date after the accident.)"355 Donaldson did not hide the fact that he blamed physicians for malpractice problems. In his opening paragraph he states that "Smith lived a nightmare - the victim of medical ineptitude or error."356 He goes on to write, One Los Angeles doctor told me, "We physicians are getting a black eye because of too many cases like this." Another said, "We had a grim joke in medical school: 'A doctor can bury his mistakes.' This boy came too close to being buried needlessly." Donaldson's point of view is clear - Smith was injured through negligent care, and that this type of injury is not unusual. He wonders how many thousands of patients are in mental institutions because of improperly diagnosed head injuries, and concludes that despite these physician errors patients are denied justice because, "It is almost impossible to get one physician to testify against another."357 This Look article is typical of the magazine articles of the 1960s which focused on a single unit of the malpractice triad - the doctor, the patient or the physician - and placed the blame for the increase in suits on that unit. Which unit took the blame was not particularly important. Authors could push the drama of the situation in any direction which they saw fit. The cause of suits could be "The Ungrateful Patient,"358 or "When a Doctor Errs."359 Nevertheless, the trend was to blame the physician for errors, perhaps because physicians had begun to admit problems with patient care. Physicians had to face the res ipsa pressure from the courts, demands from their insurance companies to settle suits, and now negative press accounts. The pressure effected physicians.

An end to the silence During the 1960's several medical societies organized malpractice review boards which proved to be remarkably effective. The Alameda Costa County Board, which included physicians from the county and a clergyman who represented the interests of area residents and assured the board's legitimacy. It worked directly with the society's insurance company and in cases in which the board ruled that negligence had

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occurred the insurance company was advised to settle the case and usually did. The Board arose in response to specific injunctions by the courts against the problem of the conspiracy of silence. Other societies around the country also implemented malpractice review boards, though there were a variety of designs. The Alameda Costa County plan worked with the society's group indemnity program, but the review boards of the Los Angeles County, California and Pima County, Arizona medical societies chose not to work with a specific insurer. In Los Angeles the county society appointed a panel of general practitioners and specialists. A plaintiff's attorney would make a request for a list of appropriate physicians from the panel, pick one from the list, and barring conflict of interest, that physician would review the case and provide a written report as to whether he believed that negligence may have resulted in an injury. The physician was paid for his review, and in the event that the attorney brought the case to trial the physician could be called to the stand - again, being paid for his time. In the Pima County plan the panel was made up of members of the medico legal committees of both the county medical society and the legal society. The entire panel would review the case and hold an informal hearing at which the plaintiff's attorney could briefly present his case. Then a secret ballot would be taken, and in the event that the panel determined that the defendant acted negligently then the medical society would fully cooperate with the plaintiff in his case.360 State associations also implemented plans, and in fact the first review board was created by the New Hampshire Medical Society in 1929, more than twenty years prior to any other review board in either a state or a county. Like the Alameda plan, the New Hampshire plan worked with the society's insurance firm, the Hartford Accident and Indemnity Company, and only physicians were chosen for the panel. The plan had a spotless record with regard to settlements - no physician had ever elected to defend a suit in which the committee recommended settlement.361 The Delaware State Medical Society started with a physician panel, but it failed to be effective and so the society joined with the state bar association to form a joint panel similar to the Pima County plan. New Jersey started a similar plan in 1962, and by 1966 it recorded that 43% of the suits were withdrawn following the board's decision, and of those which were not withdrawn 61% were settled.

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Fewer than 2% of those which went to trial which resulted in damages to the plaintiff.362 The proliferation of malpractice boards is further evidence that physicians had retreated from their stance that negligence did not exist, and therefore no awards could be justified. Physicians went beyond working with insurers, to sit on boards which voted to pay out awards to plaintiffs who had been injured by their physicians. The fact of physician error begins to appear in their writings. One physician interested in warning physicians to be courteous to patients, presented a narrative of a case in which a patient told him that her physician "just messed me up in spades." She had gone to the physician for "some heavy spotting at irregular intervals." He told her that for a woman her age this was normal, and then when the condition continued he sent her for urologic exams. She said that this was not where the blood was coming from but he failed to listen. After a year of being told not to worry she went to another physician who diagnosed cancer of the cervix, but she never thought of suing her doctor because although "He was always so rushed," she found him to be "always courteous and kind." The author writes, "This woman is dying without complaint by the hand of a kind, courteous doctor, while many a competent doctor who may have saved her life would have been sued for his efforts." 363 Here is a physician arguing that physician error led to this woman's terminal state. While physicians regularly criticized one another's care in sealed "M&M" (morbidity and mortality) committees, the great shift in the late fifties and on through the sixties, is physician willingness to directly indict other physicians. It began with malpractice review committees, general comments about the state of the profession, and characterizations of anonymous physicians, but by the 1970s it would result in physician firms specializing in presenting testimony against fellow doctors. In the 1960s physicians began to openly admit to error as a part of their daily life. In 1969 otolaryngologist George E. Shambaugh summed up these admissions writing, Not a single day passes but every honest and conscientious physician has one or more instances where hindsight was better than foresight and where he wishes he might have acted otherwise or have done better in diagnosis and medical or

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The open recognition that physician error and negligence exist allows the medical establishment to begin to remedy the situation through the first changes in practice patterns.365 While the courts had recognized a standard of care since the 1898 Pike case, the medical establishment was extremely reluctant to set any such standards. Physicians did not see any reason to respond to the malpractice crisis with written protocols of how a procedure should be handled or the development of "best practice patterns."366 For physicians healthcare remained a work of "art" which is constantly in process, and so to delineate the proper procedure for any medical activity would be to lower care and invite suits. Hospitals took the opposite view and began to develop effective procedures to reduce error.

Sponge count rules By the 1960's hospitals had become bureaucratic institutions whose leaders had a healthy regard for protocol, procedure and the bottom line. During the 1930s and 1940s, surgeons, state regulators, and third party insurers had pushed hospitals to adopt greater standardization of records and procedures. In the 1950s, as hospitals became liable for more suits due to the doctrine of respondeat superior, hospital organizations and administrators sought management solutions to correct the problem.367 Hospital associations developed statistical analyses of the malpractice problem to motivate administrators to develop blueprints for suit reduction. Once again hospitals sought to further standardize patient care. The California Hospital Association pressed for three new safeguards in hospital operations following its 1954 survey of hospital accidents: sponge counts, guardrails on all beds, and wristbands. The association recognized that suits resulting from sponges left in wounds, the wrong patient being operated on, and patients falling out of bed could be avoided with the development of relatively inexpensive and easily implemented new procedures. A group of hospitals that reported

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18 lost sponge incidents in 1954 reported none for 1957 and only one for 1958.368 During the 4 year period from 1955 to 1959 hospital insurance premiums remained the same, another indication of the effect of the program. Hospital administrators could demonstrate better care for their patients, and lower costs to the hospital.

Complaints, Causation and Damage Control Despite the medical community's admission that doctors make mistakes, there was no lack of complaining about the malpractice problem, delineating its causes or calling for outside solutions. Physicians and attorneys continued to write articles for the medical journals in which they listed the cause of suits, and remedies to the problem. These lists had begun to change significantly, and though many of the old items such as the problem of "loose talking" physicians remained, new items crept in which demonstrated a change in the physician perspective.369 The new lists called for "discretion in delegating responsibility" reflecting the continuing integration of hospital care and the court's recognition of the responsibility of both physician and hospital for those decisions. Physicians were also warned to be wary of suit prone patients and to "remember the importance of the doctor patient relationship."370 For the first time the lists of causes of suit included the possibility that an error actually occurred. It appeared third on one list after litigious patients and bad results.371 More importantly it became a routine part of the recitation of recent cases. In one article an author used the story of a patient who told an orthopedist that the saw being used to remove a cast was cutting her arm and he replied, "You cannot be cut with this saw," after which they both discovered a 9 inch laceration of her arm. The tale was used to teach two lessons: errors occur, and it is best to pay attention to the patient. Other cases were used to demonstrate that haste and a lack of sincerity also lead to suits.372 A second shift in these lists, other than admission of error, was the blaming of large social forces for the increase in suits. The mystery surrounding the profession had been lost, and the American people felt entitled to "absolute protection from someone for every misfortune in

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life."373 Authors complained that "the public is becoming more litigation-minded and wants to be paid for injuries." 374 Patients were looking for a "fast-buck" because as a nation "we have been drifting down the road of the Welfare State and are fast becoming a nation of materialists."375 These authors complained about a public which not only felt entitled to compensation, but which had come to expect medical miracles. Joseph Sadusk wrote, "The public through news and magazine media has been led to expect wondrous results from medical and surgical treatment but has not been made aware by these writers of the serious and unexpected complications that sometimes result."376 Others took the opposite view. Far from seeing physicians as miracle workers, they thought the public now had a negative view of physicians because of the "adverse attention in television plays, radio skits, public speeches."377 Whether or not the public had come to expect miracle results "the average patient... knows that professional errors do occur."378 The outcry against attorneys, apparent in earlier writings, shifted from personal attacks against blackmailing lawyers to an assault on the way in which plaintiffs attorneys receive payment for their services. "The greatest single cause of the filing of malpractice actions on the part of attorneys is the contingency fee," according to the Archives of Otolaryngology editorial page.379 These authors believed that a system whereby an attorney could receive 30% of a settlement encouraged attorneys to gamble. They argued that the odds became better with each award, and that the root of the problem was the American Trial Lawyers Association.380 While the odds of being sued might be on the rise, so was the public expectation of physicians. Those patients whose image of physicians came from "television plays" would have seen the physician as a super-being. The major programs of the period, Dr. Kildare and Ben Casey had both received a seal of approval from the AMA, and all scripts were reviewed by an AMA committee to make certain that physicians were portrayed in the most flattering light possible. The AMA told the producers that they did not want any shows which dealt with malpractice.381

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Physicians had been backed into a corner. In 1900 they had denied that any malpractice suits were just, but by the 1920s they were buying insurance. By the 1950s court rulings had pushed physicians into the ugly position of having to establish committees which would rule against their own members. Physicians had lost control of the issue. One physician wrote, "I am most grateful for the court for informing me that maternal anemia during pregnancy is a probable cause of cerebral palsy. I have always been of the opinion that the cause of this disease is as yet unknown, though many contributing factors could be implicated."382 New court rulings would make it even more difficult for physicians to defend themselves against suits as the locality rule began to fall, and the statute of limitations was lengthened.

Legal Developments As we have seen, in many cases, physicians had responded to the court accusations of a conspiracy of silence and rulings on res ipsa by abandoning their hard line on suits and organizing malpractice committees which worked to help some plaintiffs. They had given up a lot of ground in their fight against suits, and did not appreciate the courts new expansions of malpractice law in the late 1950s and the 1960s. Courts made two remarkable changes in the law, one which gave patients more time to sue, and another which restructured the measurement of the standard of care.

Statutes of Limitations Plaintiffs have always been required to initiate tortious actions in a timely fashion. Both courts and legislatures frown upon "stale" actions and have moved to prevent them. For example, one cannot be injured in a car accident and then wait 20 years before suing the other driver. The question for lawmakers and the courts is how long a period is reasonable. By the early twentieth century most legislatures had created "statutes of limitation" which limited the initiation of actions from one to three years following injury. These statutes of limitations proved to be powerful weapons in the defense of malpractice suits, for the same reason that calculating

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insurance costs was more difficult for indemnity firms covering malpractice suits than for those covering automobile policies. The "tail" - or the number of years it might take before a patient sued a physician - was a significant factor for malpractice actuarials. Patients might not discover their injury - for example a sponge left behind in the surgical field - until months or even years after the injury. The statutes of limitations were in effect a means of limiting the "tail." If a patient discovered the injury two years after the operation, and her state had a one year statute of limitations, then she could not sue under the law of torts. For example in a 1940 Connecticut case the defendant doctor was summoned by the patient's obstetrician to give a blood transfusion while the patient was in childbirth. The defendant failed to test the donor's blood for syphilis and eight months later the patient discovered that she had syphilis. The defendant treated her, but she died one week later. Eighteen months later a suit was commenced on her behalf. Connecticut had in place a two year statute of limitations and because the suit was begun two years and two months following the source of the injury - the transfusion - the court barred the action.383 When patients did not discover an injury until after the statute of limitations it was very difficult to recover. In one case, during a tooth extraction a dentist failed to remove the root of a tooth, but the patient did not experience severe pain until two years later when the tooth and gums became infected. The patient visited another dentist who discovered the root, but by this time the statute of limitation had already run out and the patient had no recourse under tort law.384 In such cases, defense attorneys worked against the statute by filing actions based on breach of contract, but this became increasingly difficult as the courts solidified their position that malpractice was a tortious act because a physician did not imply a guarantee to cure. Defense attorneys were effective questioning the start-time of the statute clock. Oliver C. Schroeder, the director of the Law-Medicine Center and Professor of Law at Case-Western University, wrote, "When does the period begin to run? When the act of malpractice is committed? When the act of malpractice is discovered? When the physician's relationship with patient is terminated?"385 Courts were somewhat flexible about variances in the time of injury and the time of the termination of the doctor patient relationship, but until the 1960s

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few courts saw the date of the discovery of the injury as relevant to the statute of limitations. Courts had ruled that if the physician fraudulently concealed his mistake from the patient, then the statute could begin with the time of discovery, but it was extremely difficult to demonstrate that a physician had fraudulently concealed such information.386 The Arizona court tried to remedy this through the application of an illdefined "constructive fraud," but the application appears to have been limited to one case.387 During the fifties few courts ruled that the statute of limitations begins at the time of the discovery of the injury, but beginning in 1959 courts across the country shifted to the "doctrine of discovery." In the next ten years fourteen courts adopted the discovery doctrine, bringing the total to eighteen. During the same period the federal courts also adopted the approach.388 Courts recognized that an injury from medical negligence is far different than other injuries. They noted the specific trust inherent in the physician patient relationship and the "inherently unknowable" nature of malpractice injury.389 While the rulings removed one of the weapons in the arsenal of the malpractice defense attorney, physicians were remarkably quiet about the change. Massachusetts maintained the earlier interpretation in a case which exonerated a surgeon because his relationship with the patient had ended, but held a physician responsible because he continued to care for that patient. Neil L. Chayet, Assistant Professor of Legal Medicine at the Boston University Law-Medicine Institute wrote in the New England Journal of Medicine, "On balance, this interpretation seems to be the fairest not only to the patient, but also to the medical profession, as demonstrated by the apparent inequity of the Massachusetts decision holding the surgeon free from liability but the treating physician open to full liability."390

Dismantling Charitable Immunity As the courts made it easier for plaintiffs to sue physicians, by extending the time to complaint, they also widen the field of patients who could sue hospitals. As they did so, the courts eliminated a legal variation is the care standard. Hospitals had been judged by two standards: one for charitable, or public hospitals, and another for private hospitals. The courts chose to eliminate that variation in care

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standard between the charitable and the private hospital. Courts had also ruled that hospitals could not be held liable for the negligent practice of medicine as corporations cannot practice medicine, therefore a corporation could not be held liable for negligent practice. In the late 1950s courts began to expand hospitals liability by ruling that hospitals were liable for administrative error which led to injury. In some cases hospitals were held liable for their choice of staff, in others for the injuries caused by staff members. Hospitals were not held liable for the acts of physicians. In 1957 the New York State Court of Appeals put forth a commanding decision that marked the beginning of the end for charitable immunity in Bing v. Thunig and St. Johns Episcopal Hospital.391 Nurses at the hospital were preparing Isabel Bing for an operation to correct a fissure of the anus. Following the induction of spinal anesthesia the nurses applied an inflammable antiseptic solution to the operative area. They were aware of the solution's flammability and the danger if the fluid got onto the operating table linens. When the surgeon arrived he took a heated electric cautery and applied it to the fissure to mark it prior to the actual searing of the tissue. Smelling hot singed linen he immediately doused the area with water, but not before Bing received severe burns. She sued the physician and the hospital. The court noted that the hospital could only be held liable if the negligence occurred during an "administrative" act by one of its employees. The defense argued that the nurses were performing a "medical" act, and that precedent indicated that the hospital could not be held liable for such negligence. The court noted its frustration with the precedent and indicated that earlier decisions did not make it clear which were "medical" acts, and which administrative. In its decision the court complained that "Placing an improperly capped hot water bottle on a patient's body is administrative (Iacono v. New York Polyclinic Medical School & Hospital 296 N.Y. 502) while keeping a hot water bottle too long on a patient's body is medical (Sutherland v. New York Polyclinic Medical School & Hospital 298 N.Y. 682)." The court then wrote a lengthy history of the doctrine of charitable immunity and concluded that the most recent decision dealing with the general subject in New York provided two reasons for immunity. First the patient who accepts charity must be deemed to waive any right to

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damages, and second the principle of respondeat superior should not apply to doctors and nurses because, though they were employed by the hospital their skill and control over their work made them independent contractors. Decisions in specific cases had refuted both of those points. The doctrine had been expanded to include paying patients in charitable hospitals392, and in no other industry were skilled employees - pilots, engineers, chemists - not included in respondeat superior. Even the idea that charity patients waived their right to damages had "long been abandoned as 'logically weak' and "pretty much a fiction.'" In an era of widespread insurance, charitable hospitals no longer needed special protection. These hospitals had come to be run like businesses, which the court notes in ruling, "today's hospital is different from its predecessor of long ago; it receives wide community support, employs a large number of people and necessarily operates in businesslike fashion." The court concluded that "Liability is the rule, immunity the exception." Despite stare decisis - the weight of previous decisions the court felt compelled to rule against immunity for any hospital. Times had changed: hospitals participated in care. The court wrote, The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes simply to procure them to act upon their own responsibility, no longer reflects the fact. Present day hospitals, as the manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and interns, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of "hospital facilities" expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility. The court recognized the integrated delivery of health care. It noted that in this case, in which a nurse had committed an error, the

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hospital could not abdicate its responsibility based on a doctrine of immunity. For the court, it is in society's best interest for no one to be immune from liability, because it will lead everyone to minimize their negligence and the injuries which result from that negligence. The Bing case made hospitals responsible for patient care, and liable for damages resulting from the negligence of their employees in the same way that airlines are liable for negligence by their mechanics and pilots. In 1964 the courts took the next step in affirming hospital responsibility for health care delivery. While the Bing case was very important, and was referred to as authority in dozens of cases from many states, the 1964 Illinois case of Darling v. Charleston Community Memorial Hospital reverberated out beyond the legal community to a vast physician and hospital audience. Dozens of articles reported on it and assessed its impact. The titles of articles indicate the immense change that the Illinois court had wrought, and included "How to Adapt to the Charleston Decision,"393 and "Hospital Immunity Doomed by Legal Tides."394 The plaintiff Dorrence Kenneth Darling, an 18 year old college student, had broken his leg playing football in a college game. He was taken to the Charleston Community Memorial Hospital emergency room where Dr. Alexander, a 58 year old general practitioner was on call. Alexander diagnosed fractures of the tibia and fibula, applied traction and placed the leg in a plaster cast. Almost immediately Darling complained of pain in his toes which soon became swollen, dark, and insensitive. The following day Alexander notched the cast around the toes, and two days later he split the sides of the cast, cutting Darling's leg on both sides. As blood seeped from the case nurses and others noticed a stench in the room which one witness characterized as "the worst he had smelled since World War II." Two weeks after the initial injury Darling was transferred to another hospital where he was placed in the hands of the head of orthopedic surgery: Fred Reynolds. Reynolds discovered the leg contained a great deal of dead tissue as a result of a constriction of the circulation of the leg by the cast. He tried to save the leg, but ultimately amputated it below the knee. Darling sued both Dr. Alexander and the Charleston Hospital. Alexander settled for $40,000, but the hospital chose to go to trial.

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Darling contended that the hospital was negligent in assigning Alexander to the emergency room, in permitting him to do orthopedic work, and in failing to require him to keep up to date. The hospital was also negligent in failing to provide adequate supervision of the case, including failing to oversee nurses and failing to require a consultation. The defendant argued that only a properly licensed individual can practice medicine, therefore "a hospital is powerless under the law to forbid or command any act by a physician or surgeon in the practice of his profession." In addition the defense argued that "a hospital is not liable for the torts of its nurse committed while the nurse was but executing the orders of the patient's physician." The court recognized that the fundamental dispute was the extent of the hospital's duty to the patient. The defense had argued that it was not customary for hospitals to be held liable for such acts, but the court determined that "custom should never be conclusive," and quoted Learned Hand who wrote, "Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission."395 Like the New York court in Bing, the Illinois court did not wish to rush into a major shift in direction. The doctrine stare decisis is a powerful force which courts do not quickly go against. But the Illinois court had prepared the ground for a significant change in legal interpretation of hospital responsibility that destroyed the last impediment to the legal recognition of a unified care delivery system. The court chose an interesting tactic in its finding for the plaintiff. Darling had brought into evidence the Standards for Hospital Accreditation, state licensing regulations and the bylaw of the hospital to demonstrate that these authorities found it both "desirable and feasible that a hospital assume certain responsibilities for the care of the patient." The court allowed these to serve as evidence of a standard of care which required hospitals to act as caregivers. The documents had been substantiated by the testimony of expert witnesses. The court allowed the trial court's instruction that the jury could find that the hospital had failed to have the sufficient number of nurses to check for gangrene, and the instruction that the hospital failed to require a consultation with skilled surgical staff. In addition to effectively eliminating the doctrine of charitable immunity, the court also ruled that the judgment of $110,00 could

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stand, despite the fact that the hospital only had insurance for $100,000. The defense argued that the hospital would have to use trust funds to pay. The court noted that case law had eliminated the immunity of public schools, and had ruled specifically that because "public education constitutes one of the biggest businesses in the country" the public funds of the school must be required to use those funds to pay damages. Charleston Hospital had used funds to pay for its liability insurance, and the court found no reason to prevent it from using its funds to pay the judgment. Preventing such use would allow hospitals to carry as little insurance as possible, or even none at all, in order to avoid judgment. The ruling ended the doctrine of immunity by stating that hospitals are responsible for the overall care of patients. Hospitals around the country understood the importance of this case. At a national meeting of chiefs of staff one speaker told the group that the ruling meant that hospitals would be required to "control adequately medical staff appointments and privileges, to supervise the attending physician, to require the attending physician to seek consultation in problem cases, and to remove him from a case in extreme situations which may result in legal liability."396 While everyone agreed that this change in the hospitals' standing would dramatically change the physician-hospital relationship, some argued that it would be a change for the better. These commentators believed that this decision would end conflicts between physicians and hospitals once negligence had occurred. Earlier decisions which did not allow hospitals to be charged with malpractice led them to defend themselves by arguing that the patient was injured by physician malpractice, not hospital negligence, and therefore they could not be held liable.397 Following the Darling decision one attorney said, "No real purpose is served for the hospital to blame the doctor and vice versa."398 By 1960 the courts had significantly change the rules of malpractice. Physicians were being pressed to practice at a national standard, and were held responsible for many years after the negligence occurred. Hospitals could now be held liable for negligent care, and in effect were in the position of respondeat superior for everyone in the

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hospital. This new responsibility would mean a need for far greater control over the work of physicians. Courts had moved to insure that liability was the rule, not the exception. Every agent - whether it be a physician, a public school, or a private corporation - would be liable for its actions. Courts took the doctrine of stare decisis seriously, but when looking at the nature of health care delivery they could not ignore the dramatic and substantive changes that had occurred since World War II. Courts had slowly increased the responsibility of hospitals by applying a limited respondeat superior and determining hospital liability for administrative acts, but from the late fifties through the sixties courts realized that this was a bit of a fraud. Hospitals were deeply involved in determining the quality of patient care, and courts made them liable when that care was negligent.

Dismantling the Locality Rule The statute of limitations expansion only effected how suits were brought to trial, and had no effect on physician expertise or the determination of the standard of care. The end of immunity for charitable hospitals did little to standardize physician practice beyond the locality. Even the expansion of patient’s rights had nothing to do with reducing variation in medical practice. The courts would finally move to change the locality rule itself, and this would change the measure for the standard of care. A physician required to provide the standard of care of other physicians in his community was under different pressures to perform than a physician required to practice at the level of physicians in similar communities, or in all communities. Massachusetts and Nevada expanded physician care to the national level when they allowed the introduction of textbooks in the 1950s. This was more a specific response to the "conspiracy of silence," than a decision to abandon the locality rule, but as the 1960s progressed the locality rule was nearly abandoned. The Pike court understood that physicians could not all have access to the same training, information, and educational materials, and recognized that medicine is neither a national, nor a homogenized profession. When later courts discovered that physicians from small towns were reluctant to testify against one another, they expanded the

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locality rule to allow for physicians from "similar" localities to testify regarding the standards in the locality in question. If a physician practiced in a small rural community, testimony from an urban practitioner could not apply, but testimony from a physician in a similar rural community could be admitted. The Massachusetts court further expanded the rule in Brune v. Belinkoff in 1968. The defendant had administered a spinal anesthetic during the patient’s childbirth. The anesthetic consisted of 8 mg. of tetracaine in 1 cc. of a 10% solution of glucose. The plaintiff, when getting out of bed 11 hours later, slipped and fell, and subsequently complained of numbness and weakness in her left leg. She called an expert witness from Boston who testified that the tetracaine dose should have been 5 mg. or less. The trial court, noting that the expert was from Boston, not New Bedford or a similar community, ruled that the expert testimony was not valid. The court stated that a physician in a small or rural community lacked opportunities to keep abreast of advances in the profession. On appeal, the Supreme Judicial Court of Massachusetts ruled that such a strict interpretation of locality was unsuited to modern conditions, writing, The time has come when the medical profession should no longer be balkanized by the application of varying geographic standards in malpractice cases... The present case affords good illustration of the inappropriateness of the "locality" rule to existing conditions. The defendant was a specialist practicing in the city of New Bedford, a city of 100,000, which is slightly more than 50 miles from Boston, one of the medical centers of the nation, if not the world... One holding out to be a specialist should be held to the standard of the profession practicing the specialty, taking into account the practices of the profession.399 While not explicitly stating that specialists should be held to a national standard, the court made it clear that the conditions which necessitated a locality rule had changed, arguing that there was no reason for one physician to be less competent than another practicing only 50 miles away.

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One year earlier the Supreme Court of Washington had made a similar decision. A patient in an automobile accident was taken to the local hospital in Aberneen. The physician called in a dentist to reduce a fractured jaw. The following morning a nurse administered general anesthesia and the dentist performed the procedure. In the recovery room the patient suffered a convulsive seizure, and no physician could be located for an hour and a half. A physician made a spinal tap, which showed no abnormality, but following consultation with a neurosurgeon it was determined that the patient had some brain damage from the accident and was transported 110 miles to Seattle where he remained unconscious for nearly one month. The trial court found for Aberneen and the principle question on appeal was whether or not the locality rule applied. The Supreme Court's opinion included, A qualified medical or dental practitioner should be subject to liability, in an action for negligence, if he fails to exercise that degree of care and skill which is expected of the average practitioner in the class to which he belongs, acting in the same or similar circumstances. The standard of care is that established in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient. The instant case is a good example: plaintiff was taken almost immediately from Aberdeen to Seattle, distance of 110 miles.400 Like the Massachusetts court, the Washington court found that the locality rule was insufficient for the times. Patients could easily travel a distance of 50 or even 100 miles, and the courts ruled that the care patients received should be standardized not only in their town or village, but within their ability to obtain care. This idea of a "coextensive" area of medical treatment was in effect a patient based standard. The court examined the patient's accessibility to care, and then determined that experts from anywhere within that area should be allowed to testify. These decisions say nothing about the travel abilities of physicians, of their ability to obtain information and training at a broader level, nor of the national associations of which they are members. In a West

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Virginia case about the negligent performance of a cataract operation, an opthamologist from New York, Dr. Loewe, testified for the plaintiff. In his testimony he stated, We have a lot of doctors from various parts of the country visit New York and our doctors visit other areas of the country. We have annual conversations or meetings like the American Association - the American Academy of Opthamology and Otolaryngology where we all can exchange views and information. This is the standard method used throughout this country.401 Here we have a new element brought into the locality equation that recalls the Massachusetts ruling on the use of textbooks as evidence. If all physicians are trained using a particular text, or at least recognize that a given text provides the recommended method for the given procedure, why should the "locality" or even the patients mobility make any difference as to the standard of care which he should receive? Loewe argued that if physicians travel to learn from one another, to teach one another, and to attend national meetings, then there should be no substandard locality rule. The Supreme Court of Appeals of West Virginia agreed with Dr. Loewe's argument and concluded, In the circumstances of this case we perceive no reason for excluding the testimony of Dr. Loewe. The record reveals that he is eminently qualified to testify as an expert witness in the field of opthamology. We reject the strict application of the "locality" rule and hold that Dr. Loewe's testimony shows that he is familiar with the standard of medical practice in areas similar to Charleston and is therefore sufficiently familiar with that standard in Charleston to testify in this malpractice case.402 While the court allowed a physician from a distant and dissimilar locality to testify in this case, it did not eliminate the locality rule. Loewe's testimony is allowed only because "he is familiar with the

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standard of medical practice in areas similar to Charleston." The court allowed his testimony, but did not press for a uniform standard. In addition to expanding locality to "similar locality," courts began to allow an expert witness from any part of the country to testify as to "settled" practice. The first application of this standard was in x-ray cases. Courts ruled that the standards for the use of the x-ray machine did not vary significantly throughout the country, and therefore experts from any state or locality could testify regarding the standard of x-ray practice.403 This idea was taken up by the editors of the Stanford Law Review in 1962. In an effort to determine to what extent medical specialties had national standards they conducted an extensive survey of the nineteen AMA recognized specialties throughout the country. They examined the requirements for certification, subscriptions to medical journals, and membership in specialty societies. They were particularly interested in certification and continuing education and concluded that "the practice of medicine by certified medical specialties is similar throughout the country."404 The editors noted that the courts were in error in judging the similarity of localities based on socioeconomic and geographical likeness. By the end of the 1960s there were many opponents of the locality rule, and many inroads towards its abandonment. While courts were reluctant to go against the weight of tradition and authority, there were simply too many arguments against the logic of the locality rule. In 1969, Bruce Kent, writing in the Washburn Law Journal summarized the reasoning of the opposition, The "locality" doctrine was originated in the belief that it was unfair to impose standards on a defendant physician by a comparison of his acts with those exercised by practitioners in larger communities who had higher standards. With the advent of modern communication and transportation, the rural physician can remain in touch with the modern practices of communities far larger than his own. As such, the duty of a physician should not be isolated to the particular locality in which he resides. With modern facilities the horizon of the rural physician can be expanded to include metropolitan areas. It seems illogical today for a physician in a community of

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The law became increasingly less restrictive because times had changed. Unlike the expansion of res ipsa loquitur, which was largely the result of the courts need to respond to the conspiracy of silence, changes in the locality rule and the statute of limitations were simply logical responses to medical realities. Courts recognized that there were completely legitimate claims made by patients who had not discovered their injuries until over two years after they occurred. They recognized the logic in the "discovery rule," which allowed the statute of limitations to begin at the time of the discovery of the injury, rather than at the moment of injury. Courts also recognized that medicine was not a "balkanized" art. Graduates of medical schools fanned out across the nation, became members of national organizations, received national certification, read national journals, and attended national meetings and seminars. Physicians needed to be judged against a larger standard than the local community, and while case law called for this closed interpretation, the courts slowly went against the weight of authority. First they allowed like localities and "settled" practice, then they extended the geographical definition of a locality outward by over 100 miles, and finally they allowed the testimony of physicians from dissimilar localities in other states based on the fact that they should have knowledge of how their specialty was practiced even in the community in question.

The Senate Weighs In At the opening of the century when the court set the standard of care in Pike, physicians were well protected. A physician could only be found liable for malpractice if other physicians in his own community testified that his care did not meet their standards. During the 1950s courts expanded the plaintiff's ability to sue successfully by expanding the definition of locality, the statute of limitations, and the application

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of res ipsa loquitur. Physicians responded to these new attacks by organizing medical defense committees and purchasing insurance. At the opening of the 1960s a new tactic emerged which had previously escaped physicians' attention: legislative action. Legislators were moved by tales of physicians so afraid of suits that they would forego there ethical obligations in emergency situations where people were hurt. They passed bills to protect the "Good Samaritan" physician.406 The federal government’s creation of Medicare and Medicaid was far more influential than simple tales of bad Samaritans. Within a few years after the creation of these programs the government realized that health care costs were skyrocketing, and therefore the cost of these programs was far greater than had been anticipated. The Senate Committee on Government Operations, chaired by Arkansas Senator John L. McLellan became interested in the organization, financing, and delivery of health care. The committees Subcommittee on Executive Reorganization took on the task of investigating the increase in malpractice litigation in an effort to discover ways of decreasing the cost of care. Both malpractice insurance, and the possibility of "defensive medicine" would be regarded as leading to increased costs. In February 1969 the committee began asking legal, medical, and insurance experts for reports on malpractice, conducting interviews, and collecting relevant documents. In November the Subcommittee issued its 1060 page report: Medical malpractice: the patient versus the physician.407

Ribicoff Committee The committee made no statistical analysis of suits, and in fact none were included in its report. Instead over 300 pages of the report were made up of trial transcripts. There were hundreds of pages of court decisions, and hundreds of pages of reprints of articles from medical, legal, and popular journals. From the letters, transcripts and journal articles the committee concluded that suits were on the rise, the cost of awards and insurance was increasing, physicians practiced defensive medicine, and the publicity surrounding suits would lead to more suits threatening a "national crisis." In addition the committee made one remarkable conclusion.

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The committee asserted that "Most malpractice suits are the direct result of injuries suffered by patients during medical treatment or surgery. The majority have proved justifiable. These suits are the direct result of a deterioration of the doctor-patient relationship."408 Aside from the contradiction inherent in the first and third sentences, there is no factual basis for this conclusion. The committee is relying on the testimony of plaintiffs’ attorneys for the conclusion found in the first two sentences. According to every study of malpractice to date plaintiffs have won in only 1 out of 10 cases that go to court, making it difficult to prove that "The majority have proved justifiable." Powerful forces were at work in the Senates conclusion, and more than a few physicians noted that having a panel of attorney's looking into the problem of malpractice conjured pictures of foxes and hen houses. More importantly, this committee, and the later commission organized by Richard Nixon through the HEW, symbolize a startling awareness of malpractice by the end of the 1960s. The first popular articles on malpractice had appeared only a little more than a decade earlier. Within that short time, malpractice, which physicians had been complaining about since the opening of the century, had become a national concern.

Conclusion

With Pike v. Honsinger the New York S0tate Court of Appeals sought to provide patients some certainty that they could expect a minimum standard of care from a physician. That standard was a local one, determined by physicians retrospectively. The Court of Appeals took a small step towards standardization. The patient - the consumer of healthcare - needed to be assured that the physicians in his community practiced to the same standard. The Court sought to protect that local consumer. The court was advanced in its thinking: consumer protection was decades away, and even the trustbusting campaigns of Teddy Roosevelt were nearly ten years off. The Court's intended goals - the protection of consumers and the standardization of care - were ones that the medical profession would welcome. But physician leaders adamantly opposed any possibility of suit. They feared actions by unscrupulous patients and lawyers. During the nineteenth century courts had moved to protect physicians from unreasonable suits by moving medical negligence from the realm of contract law to that of torts. Courts did not expect physicians to guarantee a cure, but did seek to insure that physicians did not do anything to harm patients. Tort law allowed only those patients who had been injured by a physician's negligence to sue that physician. The Pike decision insured that physicians alone could determine whether the defendant/physician's actions were negligent or whether they met the local standard of care. The Pike decision would haunt the courts of the twentieth century. Physician leaders were upset that the testimony of a lone physician against a plaintiff had the possibility of outweighing the testimony of multiple physicians supporting the defendant. During the first two decades of the century these leaders sought to stop all suits. They enjoined their members to never testify against one another, to never disparage another physicians care, and to never purchase any liability insurance for fear that such insurance would only lead to more suits. 157

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Physicians - as a whole - were not listening to their leaders. Finally the medical societies not only ended their opposition to liability insurance, but in many cases purchased group policies for their members. The group policy purchases were less of a retreat than it appears on the surface. By controlling the policies the medical society could dictate the terms. Most sought greater control of the management of suits: society lawyers, determination of payments etc. At the same time the medical leadership continued its crusade against the evils of unnecessary suits - and all suits were seen as unnecessary. The effectiveness of Pike hinged on physician expert testimony but physicians were reluctant to testify. In light of this courts moved to ensure the rights of plaintiffs, and to press for a minimal standard of care. In cases in which an error was obvious (a scapel left in after surgery) the courts used the doctrine of res ipsa loquitur to find for the plaintiff even without physician testimony. The maintained the Pike concept of a local standard of care, while abandoning the requirement for experts. The courts also determined that they needed to do more to enforce the standard of care, and during the 1940s through 1960s acted to expand liability. All hospitals, private and charitable, would be liable for the acts of their employees. In some cases, hospitals would be liable if they could not prove that they had not injured the patient. The paperwork required by third party payers helped patients seeking to recover damages. The increase in patient records made the plaintiff's attorney's work simpler. The medical record, like the x-ray, could provide independent evidence of negligence. If the record was incomplete, or missing, that too could indicate negligence. In hospitals record keeping became standard in the 1930s. Whether wellmaintained or not, it could aid plaintiffs. While the Pike court demanded a standardization of medicine, it did nothing to ensure that physicians would testify as to another doctor's medical negligence. The fracture of the Doctor-Patient relationship resulting from a fear of medical liability is exacerbated by the patient's fear of hidden medical negligence. There were well founded concerns among patients that no physician would step forward to testify against another physician. Court's moved to balance the scales by extending the statute of limitations for suit,

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ending charitable immunity of charitable hospitals, and easing plaintiff's ability to sue staff. Physician fear of the damage to the profession, which was the focus of concerns about malpractice during the first decades of the century, shifted to physician worries about personal liability by the middle decades. In truth, for the mass of physician throughout the century, personal liability may have been the main concern. That is why they purchased insurance against society advice through 1920, and purchased insurance from firms other than that chosen by the society through the 1950s. By the 1960s and 1970s physician leaders became more concerned with loss of control than error. When an error occurred physicians did not want the investigation of that incident to be conducted by patients or lawyers. Errors were to be studied by the profession only, and transgressors were to be disciplined only by the profession. The standard set forth by Pike - a local standard determined by the opinion testimony of local physicians - had largely kept control of suits within the hands of physicians. That burden may have prevented true standardization. If physician organizations published standards, or protocols of practice, they feared that those protocols would be used against them. They may have been correct. During the 1950s courts were moved to using medical textbooks as determinants of the standard of care. The story of malpractice in the twentieth century is the story of a lack of homogeneity of practice. Despite the concept of the "standard of care", the change in medical education following Flexner, and the development of national medical boards and organizations, American medical care in the twentieth century was judged by local standards and not national ones. Medical care in Boston, was quite different than medical care in Lawrence. The 1970s would see not only an inevitable increase in the numbers and severity of lawsuits, there would also be increasing interest in such suits by the state and local governments. The Ribicoff report was followed by the HEW report to Richard Nixon. Though legislators showed an interest in malpractice they were reluctant to change the status quo. Powerful forces were arrayed on all sides of the issue: physicians, lawyers, and insurance firms.

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Despite further expansions of locality by the courts, and pressures put on physicians and hospitals by the Health Care Financing Administration and by assorted managed care companies during the 1980s and 1990s, in large part the standard of care would remain local and heterogeneous.409

Endnotes 1

In a minor way my project attempts to explore an area of history that has been debated on by such eminent figures as Erwin Ackernecht, George Rosen and Henry Sigerist. In a 1967 article "A plea for a behaviorist approach to the history of medicine," Bulletin of the History of Medicine 22: 211-14, Ackernecht wrote "that we often do not know the most elementary fact of either medical practices or of the social aspects of medical practice even for periods not very far removed from ours at all." He called for a behaviorist approach which would allow us to understand what doctors actually did, not just what they wrote about. I do not wish, to paraphrase Bruno Latour, to follow doctors around, but I do wish to follow them through the legal record. In these case materials we can discover new things about what actually happened in the clinical setting, and how patients and doctors, doctors and doctors, and doctors and hospitals interacted. 2 A clear exception to this are suits based on battery, such as Mohr v. Williams 95 Minn. 261, 104 N.W. 12 (1905). During the first half of the century cases in which plaintiffs claimed that the physician had proceeded without consent were tried as battery actions, but during the 1950s the courts shifted the majority of theses cases over to negligence, and this shift was completed during the 1970s following the United States Court of Appeals Decision in Canterbury v. Spence (464 F 2d 772) which honed the doctrine of informed consent. 3 In the following chapter we will examine Pike v. Honsinger, the case which most effectively expressed the doctrine of the standard of care. 4 James Burrow, AMA: Voice of American Medicine (Baltimore: Johns Hopkins Press, 1963) p. 19. 5 The overall narrative of this case is derived from the record of the Supreme Court case which was sent up to the Appeals Court. I want to thank Bill Gorman at the New York State Archives for obtaining this record for me. All additional information has been footnoted accordingly. 6 Case Record, Pike v. Honsinger p. 5, cite number 20. From the testimony of George Pike. 7 From the record 79-80 paragraph 316. 8 Record, p. 29; 115. 9 Record, p. 80, . 320. 10 From the Record, p.9, . 36. 11 From Pike's testimony, p. 12 12 From the documents of the NY Supreme Court p. 182.

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162 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56

Record: 20:78 Record: 21:84 Record: 22:86 Record: 25: 96-97. Record: 26: 103 Record: 31:124. Record: 33: 132. Record: 34 :135. Record: 40:157. Record: 42:165-7. Record: 43:169-171. Record: 45-49. Record: 49-61. Record: 62-63. Record: 67:266. Record: 68:269-72. Record: 68-69:227-73. Record: 71-74:284-93. Record: 74-76:294-303. Record: 76-78:304-311. Record: 79-80:317-18. Record: 83:322-29. Record: 88:349-50. Record: 89:350-55. Record: 95:379. Record: 97:388. Record: 98:39.1 Record: 101:403-3. Record: 103:410-11. Record: 105:420. Record: 106:423. Record: 106-107. Record: 114:453-4. Record: 114:454-6. Record: 115:458 . Record: 129-130:517. Record: 133-34:532-6. Record: 159:635. Record: 166:662. Record: 169:674. Record: 171:189. Record: 173-4. Record: 176:703. Record: 177:707.

Endnotes

Endnotes 57 58

59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85

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Record: 178:712. When submitting briefs to appeals courts both the plaintiff and the defendant may submit their own abbreviated version of the testimony given at the trial. This section, in Riley and Conway's brief, reviews the testimony of almost every witness, includes almost their full testimony, and italicizes the testimony that the plaintiff feels is most significant to the case. New York State Court of Appeals Record: 21:81. Record: 22:86. Carpenter v. Blake 75 NY 12. Carpenter, 18. Carpenter, 16. Record: 27:108-28. Templeton v. The People, 3 Hun 348 (affirmed by the Court of Appeals in 60 NY 643). Record: 30:117-18 Record: 30-31:119-123. Record: 33:132. Record: 7:25. Record: 8:30-1. Pike v. Honsonger 49 NE 760. Editors, "Organized medical defense," JAMA 38 (1902): 37. Lathrope v. Flood 63 Pac 1007 (1901) Ibid. Ellece M. Alger (editor), "Associated Medical Defense," New York State Journal of Medicine 1 (December 1901): 1. In 1906, at the annual meeting, a more legally precise form of the act was passed. Joseph D. Bryant and Wisner R. Townsend, "Report of the committee to select to counsel to defend suits for alleged malpractice," New York Journal of Medicine February 1906:55. Ibid. Ibid. James Taylor Lewis, "What organized medical defense does for the profession and the public," New York Journal of Medicine January 1906: 18. Ibid, my italics. Lewis; 19, my italics. Ibid, my italics. Lewis: 19, my italics. Massachusetts Medical Society, "A. compilation of the statutes of the Commonwealth relating to the Massachusetts Medical Society together with the bylaws, rules of the Society and councilors, and Code of ethics," (Boston: David Clapp & Sons, 1907):2.

164 86 87

88 89 90 91 92 93 94 95 96

Endnotes Proceedings of the Council, October and December 1913 and 1914, Bulletin of the Massachusetts Medical Society, No. 1, (July 11914):27-8. Many of the plaintiffs' cases withered on the vine or in the courthouse for lack of an expert witness. In some cases juries would grant awards to plaintiffs despite their lack of expert evidence. In the 1941 New Hampshire Supreme Court case of Michael v. Roberts 23 A. 2d. 361, the court overturned a verdict in favor of the plaintiff because the only expert testimony came from the defendant. As his testimony was not refuted, he remained the only expert in the case, and by law, his testimony would carry the case. Roberts had performed a tonsillectomy on Antanette Michael, and one hour following the operation she began vomiting blood. Roberts was notified of the condition, but he was unable to visit Michael's room as he was in another operation. When he visited the room 50 minutes into the vomiting he determined that it was not serious and that action could be deferred until an operating room was readily available. He operated from 12:05 to 12:50 p.m., and following the operation he left the hospital to make a call that "had been waiting for me all through practically all the morning." At 1:15 Michael began spitting blood and within 5 minutes the hospital superintendent and two other doctors were on the scene. At 1:25 the patient was "cyanotic with bright red blood purging from the mouth." At 1:28 one doctor began administering oxygen and artificial respiration. She died at 1:45. Shortly thereafter Roberts returned from his call. Roberts concluded that prolonged bleeding from the operation had brought about a pulmonary embolism, and because no other physicians - including those who attended to Michaels until her death - testified, his opinion carried the evidence. For more on the "cpnspiracy of silence" see Chapter 5. Proceedings of the Council 1913-14: 28-9. Ibid: 28. Ibid: 12. Once an insurer employed Lewis to defend its own client. James Taylor Lewis, "Report of the Counsel," New York State Journal of Medicine 17 5 (May 1917): 245. Ibid: 245-6. George W. Gay, "Ten years experience with the medical defense act," Bulletin of the Massachusetts Medical Society (June 18, 1918):26. James Taylor Lewis, "Report of the Counsel," New York State Journal of Medicine, 18 6 (June 1918):240. James Taylor Lewis, "Report of the counsel, New York State Journal of Medicine 19 6 (June 1919): 237. In the context of the medical defense community Lewis's exhortations can appear tame. Across the nation medical societies had adopted a policy of fighting every case as far as possible. In West Virginia one writer relates a tale typical of the period: "Dr. Linz's slogan, while chairman of the Defense Committee, was 'No

Endnotes

97 98 99

100 101 102 103

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Compromise.' Or, as it was put up to one plaintiff, 'We will fight you till hell freezes over and the devil comes out on ice." C.H. Maxwell, "The medical defense fund," West Virginia Medical Journal 26 (February 1930):95. I.S. Trostler, "The malpractice insurance question," Radiology 8 (1927):15. I. S. Trostler, "Medical malpractice insurance," American Medicine 39 (1933). Trostler (1927): 14. Trostler likened medical practice to driving a car. If you want to be safe you want to avoid cheap insurance. He wrote, "When the roads are smooth and well paved any old rig will run along fine; but after a big storm, when the road is washed out, rutty and washboard, or rough and bad, the wise driver has a big, sturdy car with balloon tires, and these roll along over the bad roads in ease and comfort, while those with anything less than the best have cause to worry [p. 18]." Trostler (1927): 15. Trostler (1927): 18. Chester A. Stayton, "Malpractice insurance," Journal of the State Medical Association 25(1932): 16. Some physicians did discover that insurance was no panacea for foolish practices. Some errors would not be covered under the insurance, most often those involving the physician's failure to understand the law. Just as most malpractice cases now were tried under the tort law of negligence, so were virtually all malpractice policies written to protect physicians under this law. In the event that a physician gave an implied or explicit contract to cure, and the patient sued him under breech of contract, the insurance firm would not pay. An example of this is the New York case of Safian v. Aetna Life Insurance Co. 24 N.Y.S. 2d. 92. Dr. Joseph Safian agreed to remove some blemishes from a patient's face for $100. The patient was disfigured and sued for $15,000. When the patient discovered that the statue of limitation for suit under tort law had expired the patient sued for breech of contract. During this trial the doctor settled for $1250. He then sued Aetna for $2006 (he included the costs of the trial). The court ruled that contracting to insure for "malpractice, error, or mistake" is different than contracting to insure for breach of contract. Roy W. Fouts, "Liability insurance," Nebraska State Medical Journal 16 7 (1931): 268. George W. Whiteside, Letter to the House of Delegates of the Medical Society of the State of New York, May 2, 1921. Printed in New York State Journal of Medicine 21 6 (June 1921):227-8. This is referred to as the "tail". When an insurance firm assesses the risks for insuring automobiles it has several ways of calculating that risk. One of the most important is the amount of profit it made on automobile insurance during the last year. The insurer examines the revenue from auto policies it sold during the year, how many accidents occurred during the

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Endnotes year, and what it had to pay out in damages for these accidents. If the cost of damages outweighs revenues, and administration costs preventing the company from realizing a profit, then the insurer raises the rates for the following year. The company knows when a policy holder has an accident, and it can usually close the claim within weeks, or at most, months. With malpractice liability insurance, determining profit is a much more complicated picture. The insurer sells physicians one year policies, but unlike automobile insurance, claims against the policies issued during that year will probably not arise during that year. Frequently a patient will not know of an injury until the following year, or even many years later. An instrument left in a wound may cause the patient problems, but may not be discovered for years after the operation. Even then most states allow the patient at least one year before filing a suit against the physician. It may be several more years before the case is completely concluded and the insurer pays. Thus the "tail" can be over ten years. During that time, juries may significantly increase the amount of awards. This makes it extremely difficult to determine appropriate rates to charge for malpractice insurance. An insurer might go for five years, charging a low rate and continuing to make a profit, only to lose a large settlement on insurance sold in the first year. This requires the company to increase rates for the following year. If the insurer pays out several such awards from the previous five years in one year, they will experience a net loss, and thus be required to substantially increase rates the following year. Whiteside: 227. Whiteside: 227. Whiteside: 228. Whiteside: 228. Clarence Bandler, "Malpractice insurance and defense: the importance of the group plan," New York State Medical Journal 43 (May 15, 1943): 9257. Bandler: 925-6. Joseph A. Lane, "Report of the malpractice insurance and defense board," New York State Journal of Medicine 56 8 (April 15, 1956): 1323. Lane: 1323. It is also interesting to note that while downstate doctors had only about 40% participation in the plan, upstate physicians had up to 93% participation (Cayuga County). The typical upstate county had more than 65% of its members in the plan. Stanley Joel Reiser, Medicine and the reign of technology (Cambridge: Cambridge University Press, 1978). Deidi Strickland and Anthony N. Stranges, "Laying the foundation of modern radiology, 1896-1930," Medicina nei Secoli, 3 (1991): 202-7. For further information on the history of radiology see Ronald L. Eisenberg's Radiology: An illustrated history (St. Louis: Mosby, 1992). The standard work on American radiology is Ruth and Edward Brecher's The rays: A

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119 120 121 122 123 124 125 126 127 128 129 130

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history of radiology in the United States and Canada (Baltimore: Williams and Wilkins, 1969). See also Pino Donizetti, Shadow and substance: The story of medical radiography (Oxford: Pergamon Press,1967) and Stephen B. Dewin, Modern radiology in historical perspective (Springfield, Ma.: Charles C. Thomas, 1962). Wells v. Ferry-Baker Lumber Co. 57 WA 658, 107 Pac 869 (1910). Physicians found themselves needing to x-ray for more than just fracture cases. As the medical profession, patients, and attorneys became increasingly aware of the powers of the x-ray tool, suits for failure to x-ray increased in other areas as well. Ernest Kosak, a foreman of the core makers at French Battery and Carbon Company in Madison Wisconsin was helping another worker install a spring in a machine when a part of the spring flew out and hit his eye. He traveled to see S. R. Boyce, an ear nose and throat specialist. Boyce examined the eye and discovered a scratch to the cornea, but no foreign matter. Kosak returned to see Boyce several times during the next few months complaining that the eye pained him as though something was in it. Finally Kosak visited another specialist, Dr. Davis, who performed an x-ray and discovered a small piece of steel which he removed with a magnet. Kosak v. Boyce 201 NW 757 (1925). Foote v. Bonnet 47 Colorado 282. C.M. Dutcher, "The relationship of fractures to malpractice suits," Journal of the Iowa State Medical Society 10:10 (October 15,1920): 331-5. Joel D. Howell, Technology in the hospital: transforming patient care in the early twentieth century (Baltimore: Johns Hopkins University Press, 1995): 119. Leslie Childs, "Liability for failure to diagnose dislocation or fracture," Journal of the Kansas Medical Society 21 (1921): 394. Howell: 120. Howell has examined patient records from the two hospitals and provided an analysis of lag times between admission and the x-ray. Kuhn v. Banker 13 N. E. 242 No notes are available on why this was, but it is probably another indication of the difficulty plaintiffs encountered in attempting to get physicians to testify against one another. Henslin v. Wheaton 97 NW 882 Holt v. Ten Broeck 134 MN 458, 159 NW 1073 cited in Donaldson, S. W. "Legal aspects of x-ray," Journal of the Michigan State Medical Society 29 (October 1930): 700. Wells v. Ferry-Baker Lumber Company 57 Washington 658, 107 P. 869. Trask v. Dunnigan 299 S.W. 116. James v. Grigsby 114 Kan. 627, 220 Pac. 267. It should be noted that physicians continued to fail to x-ray fractures even where the machines were readily available. In a Boston case from 1926, a physician tied a patient's fractured leg with clothes line and returned the following day with another physician to set the leg. Neither thought of x-raying. Two

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133 134 135 136 137 138

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Endnotes months later the patient went to another physician who x-rayed the leg and admitted the patient into the hospital for re-setting the bone (Shannon v. Ramsey 19 N.E. 235). Donaldson, S. W. "Legal aspects of x-ray," Journal of the Michigan State Medical Society 29 (October 1930): 700-701. Radiologists wanted control, states saw the advantages in limiting access to a dangerous device, and the insurance industry generally refused to insure laymen. Often insurers even refused to insure physicians who used the device for therapy due to the high risk of burns. Kentucky was the first state in the union to shut down lay laboratories, and to require board certification of physicians using the machine (S.W. Donaldson, "Medicolegal considerations of x-rays," Radiology 19 (1932): 393. Curley v. McDonald 160 NE 796 (1928) Welch v. Frisbie Memorial Hospital 9 A. 2nd 761. Kelly et ux. v. Yount 7 A.2d 582. Moore v. Steen 283 P.R. 833. Ballance v. Dunnington 217 NW 329 (1928). It is important to remember that I am using the x-ray as an important example of the interaction of technology and malpractice. There are cases involving other technologies, and certainly there are cases which center on medical equipment seemingly non-technological in nature. In December 1931 a Chicago lawyer told the Chicago Medical Society that, "Another type of case is that growing out of burns from hot water bags. There is seldom a year that goes by that he does not have one or to of these cases." (E. W. Rawlins, "The doctor and the law," Chicago Medical Journal 50 (July, 1926):66). In 1932 the Supreme Court of Oklahoma, did not find damages for $10,000 excessive in a case in which a hot water bottle burned the heel of the patient in the hospital (Duke Sanitarium et al. v. Hearn 13 P. 2d 183). Cited in Ruth and Edward Brecher, The rays: A history of radiology in the United States and Canada (Baltimore: Williams and Wilkins, 1969): 137. Hales v. Raines 141 SW 917 (1911). What ultimately complicates the case is that Hales had already sued Raines for the same injury. During the first part of the treatment his hand had become swollen and diseased by the burn. Raines wrapped it in a cloth saturated with a strong solution of salt water thereby causing his hand to mortify and decay. Then Raines scraped the mortified and decayed flesh from the palm and rebound it with a cloth. During the trial Raines wanted to introduce evidence which would show that before he applied the x-ray to the Hales' hand he told him that it was a new mode of treatment not well understood by the profession, that it involved some danger, and that Hales would assume all known and unknown risk of the x-ray. The supreme court ruled that the trial judge should have allowed this evidence to be presented, and that because of this

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147 148 149 150 151 152 153 154 155 156 157

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error the judgment for Hales for the sum of $5, 583 was reversed and remanded for a new trial. Legler v. Muscatine Clinic et al. 223 N.W. 405. Hunter v. Burroughs 123 VA 113, 96 SE 360 (1918). Kuehneman v. Boyd 193 WI 588, 214 NW 326 (1927). McCoy v. Buck 157 N. E. 456. Richard Kovacs, "Accidental injuries in office practice," Journal of the American Medical Association 100 2 (January 14,1933): 107-110. S. W. Donaldson, "Medico-legal considerations of x-rays," Radiology 19 (1932):389. Donaldson writes, "Most of the claims arise from treatment. Of these, in New York State last year 77 percent were against men recognized as being well qualified to administer proper care. The remaining cases were against men who were doing some x-ray work along with their other practice. The fact that technicians have been allowed to administer treatments without close supervision has been the basis for many claims..." I. S. Trostler, "An important malpractice decision," "Radiology 3 (1924): 346. I. S. Trostler, " Some lawsuits I have met and some of the lessons to be learned from them (First Installment)," Radiology 25 (1935): 329. Ibid. [Luke 11:48]. Editors, "Admission to the professions of law and medicine," Case and Comment 39 (Winter 1933): 2-7. I. S. Trostler, "The malpractice insurance question," Radiology 8 (1927):14. I. S. Trostler, "Medical malpractice insurance," American Medicine 39 (January 1933):19. Czar Johnson, "Medical malpractice suits," Minnesota Medicine 11 (1928): 333 (his italics). Johnson, 333. I believe that unofficial refers to the most cutting edge, or those treatments not yet demonstrated in textbooks. Johnson, "Medical malpractice suits (Second paper), Minnesota Medicine 11(1928): 493-4. J. G. Crownhart, "Malpractice suits: their prevention," Wisconsin Medical Journal 27 (1928):573. Halbert G. Stetson and John E. Moran, " Malpractice suits, their cause and prevention," 210 (June 28, 1934): 1381. I doubt that these two actually analyzed 35000 cases for several reasons: (1) to obtain 35000 cases would have meant they used cases which had not even been appealed, necessitating visits to hundreds of court houses. (2) In the article they also refer to having analyzed 40000 cases. (3) Their chart does not use data from their study but uses case data from another study of 160 cases. Crownhart 573. Stetson and Moran, 1382. This comes from a communication to them by an unnamed source.

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160 Silas A. Lewis, " The medico-legal importance of the physician's and hospital records," American Journal of Surgery 19 (1933): 497 [my italics]. 161 Lewis, 498. 162 W.H. Oppenheimer, "Legal pointers," Minnesota Medicine 9 (1926):186187. 163 Joshua S. Chinitz, "Some legal aspects of hospital records," Bulletin of the American Hospital Association 7:7 (July 1933): 24. 164 Of course the statutes of limitations vary from state to state. 165 Crownhart, 574. 166 J. E. Tuckerman, "How to avoid and prevent suits for alleged malpractice and some of the more common causes of such litigation discussed by chairman of the committee on medical defense," Ohio State Medical Journal 28 (1932): 861. 167 In some cases plaintiffs attempted to get around the malpractice statute of limitations by arguing that the physician had given a verbal contract to cure the patient. In this case the statute of limitations for a tortious action would not apply, and the patient could sue. A good example of this is the 1932 Oklahoma case of Seanor v. Brown 7 P.2d. 627. 168 Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905). 169 Theodore v. Ellis, 144 La. 709, 75 So, 655 (1917). 170 Brennan v. Parsonnet, 83 N.J.L. 20, 83 A. 948. 171 Harry Rockwell, "Emergency as obviating necessity of obtaining patient's consent to operation," Law Notes 35 (November 1931): 145. 172 Tuckerman, 861. 173 Johnson, 420. 174 Johnson, 420. 175 Arkansas Midland Railroad Co. v. Pearson 135 SW 917 (1911). It was also shown that 50 cents per month of hospital fees was deducted from the wages of the deceased by the appellant. Such deductions were made from the wages of all employees for the support and maintenance of its hospital department for furnishing medical attention to its said employees when the occasion arose. There was some testimony tending to show negligence upon the part of the physicians in the treatment of his injuries in permitting him to be carried upon the local train to his home after injury, instead of allowing him to rest. The court ruled that the railway company was not maintaining its hospital department to drive any gain or profit. Because hospitals conducted for charity are not responsible for the negligence or malpractice of their physicians the company itself should not be held responsible for such negligence. In addition, the fund which the railroad company administered (from which it took no profits) was made up of deductions from employee pay. The court writes "It was not contemplated by such employees in their contribution to this fund that it should be used in the payment of damages for the negligence or

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malpractice of physicians employed in the operation of such department." The judgment for the plaintiff was reversed and the cause remanded. The court also ruled that there was no error in permitting hypothetical questions to be asked of the expert witnesses. Editors, "Malpractice protection," Time 25 (November 18, 1935):54. Rush McNair, "The truth, the whole truth, and nothing but the truth," Journal of the Michigan State Medical Society 26 (May 1927): 279. Ibid. Edward Miloslavich, "Medical testimony," Marquette Law Review 12 (1927): 112. L.G. Allen, "The physician's testimony," Journal of the Kansas Medical Society 33 (October 1932): 351. Charles F. Keeley, "The general practitioner on the witness stand," New England Journal of Medicine 206 (January 7 1932): 12. Henry C. Coe, "The practicing physician in court," New York State Journal of Medicine 28 (September 1 1928): 1053. H. Roy Waugh, "The medico-legal status of the physician," West Virginia Medical Journal 23 (May 1927): 272. L. Howard Moss, "The practicing physician in court," New York State Journal of Medicine 28 (August 15 1928): 970. Perhaps what convinced Trostler to testify in this case was that the plaintiff was the younger brother of a fellow radiologist. Trostler, "Some lawsuits...First installment," p. 331. Ibid: 333. Ibid. I. S. Trostler, " Some lawsuits I have met and some of the lessons to be learned from them (Third Installment)," Radiology 25 (1935): 591. One has to wonder whether this internist was somehow improperly socialized by the profession. I. S. Trostler, " Some lawsuits I have met and some of the lessons to be learned from them (Seventh Installment)," Radiology 26 (1936): 360. I. S. Trostler, " Some lawsuits I have met and some of the lessons to be learned from them (Fourth Installment)," Radiology 25 (1935): 713. Henry Taft, "Opinion evidence of medical witnesses," Virginia Law Review 14 (December 27): 90. Harry DeReus, "The doctors and the law," Journal of Iowa State Medical Society 17 2 (February 1927):43. Waugh 278. William A. Porteous, The doctor in court," New Orleans Medical and Surgical Journal 3 (August 1930): 64. As military service did not relieve soldiers of their rights as citizens, it allowed soldiers to sue their physicians in the medical corps. Nevertheless, the Judge Advocate General's office reported that malpractice cases against members of the corps were extremely rare, Leo M. Ford,

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Endnotes "Malpractice and war," Journal of the Michigan Medical Society 41 6 (August 1942):695. The secretary of the Minnesota Board of Medical Examiners told the Association of Medical Librarians, "One of the things that I would like to mention is the very bad practice of permitting correspondence and privileged communications to be placed in the hospital records." He told the story of a patient who was about to undergo surgery. His surgeon wrote the patients local doctor asking his opinion. The local doctor gave a "frank summary of the situation." The letter went into the patient's record, and subsequently was read by the patient. The patient refused to see his physician again, and sued both the physician and the surgeon. Editors, "Medico-legal aspects of hospital and medical records," Minnesota Medicine 22 (1939):521-2 Frank P. Hammond, "The medico-legal aspect of records from the surgeons viewpoint," Hospital Management 41 (June 1936): 60. F. D. Bradley, "Medical records and the law," The Modern Hospital 52 (1939):70. Bradley: 71. Monroe Lerner and Odin Anderson, Health Progress in the United States 1900-1960 (Chicago: University of Chicago Press, 1963): 239. Administrators believed that the record could counter the misrepresentations of plaintiffs, and this was often the case. In Douglas v. Johnson 16 N.W. 2d 504 (Nebraska 1944) the record completely contradicted the patient's testimony. The patient argued that she had been brought into the operating room under a sheet, and that the defendant operated on her without ever having seen or spoken to her before. But the record showed that Dr. Johnson had in fact interviewed her, and had asked her a series of questions, even noting that she was married and had three children. Though administrators never commented on this in their writings, the hospital record was a double edged sword in malpractice cases. The record could contradict physician's testimony as it did in the case of Beringer v. Lackner 73 N.E. 2d 620, Dr. Lackner was sued for performing an unauthorized hysterectomy after having been employed for a D&C. In addition, he was accused of negligence in the hysterectomy. At the trial he took the position that he had been required to perform the hysterectomy in a certain way due to the fact that uterus was not fixed to the anterior wall but suspended. However in a memorandum found in the record Lackner had written that the uterus was "Fixed at Ant. Wall." Joshua S. Chinitz, "Some legal aspects of hospital records," Bulletin of the American Hospital Association 7, 7 (July 1933): 22. Henry H. Caldwell, "Legal aspects of hospital records," 14 (1940): 23. This issue is still not fully resolved, however in the 1970s patients' rights advocates pressed the states to require hospitals to show the patient

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209 210

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everything in the records when the patient requested. In some states, like Massachusetts there must be a formal request in writing made to the record office, and generally a physician will be present to review the chart with the patient. Sister M. Ann Joachim, "Hospital records and the courts," Hospital Progress 21 (1940):404. For a detailed account of how this was done, read the account of the librarian for the St. Alexius Hospital of Bismarck North Dakota, Sister Helen Terese, "Answering subpoenas of medical records," Hospitals 15 (1941):27-8. Joachim: 405. A good example of the tools available in the lawyer's bag can be found in the 1943 Wisconsin case of Krestich v. Stefanez 9 N.W. 2d 130. In 1928 Dr. John Stefanez removed Mary Krestich's gall bladder and left a surgical needle in her abdomen. The surgical nurse reported that the needles could not be accounted for, but the defendant lied to Krestich and told her that he had found the missing articles. For the next 13 years Mary suffered a series of serious illnesses as a result of these needles. Stefanez remained her doctor until 1937, and in 1941, during the suffering from another abdominal illness, a surgeon discovered the needles and removed them. Krestich had no recourse under the malpractice statutes however because the plaintiff was required to give notice of injury within two years of the act. But the plaintiff's attorney had a "trick." He sued Stefanez for fraud, rather than for malpractice. The Supreme Court ruled that the suit for fraud could continue and remanded the case to the trial court. Sometimes even with good information lawyers could ruin their cases. There are some fine examples of these less than tricky lawyers. One of the best is in Champs v. Stone 58 N.E. 2d 803 (Ohio 1944). In his opening statement plaintiff's counsel told the story of how dr. Stone was so drunk that slurring his words and unable to make a proper injection. Counsel told how "the plaintiff protested about the doctor going forward." The defense attorney rose before the court and said, "On the opening statement, the defendant moves for a directed verdict and I grant that motion on the ground that if I myself take the chance of being treated by someone whom I ought not to take the chance of being treated by. In other words, if I go to a doctor who is drunk and I know he is drunk and let him treat me because he insists on treating me I take the consequences thereof and that is my own fault, in plain language, and I am guilty of negligence..." The court ruled for he defendant. In a strange twist of fate in one case a nurse who was suffering from an attack of vomiting was given magendie, a morphine solution. Earlier in the year it was discovered that some of the magendie had become dangerous and decomposed, but the administrator had kept it in the nurses infirmary medical cabinet. She requested that it not be used, and that if a nurse were so ill as to require it she should go to into the hospital to get it.

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Endnotes Unfortunately it was the magendie from the nurse's cabinet which was injected and the nurse lost the use of her arm. In yet another attempt by a lawyer to get around the charitable hospital immunity from suit, she sued not on the grounds of medical negligence, but on the grounds of "negligent performance of an administrative duty." This did not pass muster with the court. The hospital fully admitted its fault, but she could make no recovery. Volk v. City of New York 30 N.E. 2d 596 (New York 1940). Glavin v. Hospital 12 R.I. 411. This was further revised in the Connecticut case of Hearns v. Waterbury Hospital from 1895, in which the court ruled that a hospital is not responsible for the negligence of its nurses and physicians "where it had exercised due care in there selection." W.F. Schick, "When is the charitable hospital liable and why?" The Modern Hospital 39 (July 1932): 84. Assigning responsibility for negligence in the hospital was an important part of cases. In the case of charitable hospitals, plaintiffs could sue for administrative errors, but not for medical negligence. In other cases patients could sue the physician for the acts of his nurses. They could not sue him if those nurses were working for the hospital. One vital issue at stake in cases was the role of interns - were they servants of the hospital, or the servants of the physician they were working with at the time? The Pennsylvania case of McConnell v. Williams (65 A. 2d 243) takes up this issue. Following a delivery the physician instructed his intern to tie the cord and apply silver nitrate to the eyes (to prevent opthamalia neonatorum). The intern did so, but according to the testimony of a nurse, he squirted far too much solution into the right eye, and then failed to irrigate the eyes for at least the 5-10 minutes that the nurse was in the room. The child's right eye was so badly burned that it had to be removed, and a glass eye inserted in its place. That the intern committed an error which resulted in injury was established, but could the plaintiff recover from the physician based on the doctrine of respondeat superior? There was no precedent established for interns, so the court turned to the precedents for other workers. A person is the servant of another when "he is subject to the latter's control or right of control." A servant can also serve two masters. The defendant was free to make his own choice as to who helped him with the delivery, and he chose this intern. When the defendant was asked if the intern had to carry out his orders he answered, "That is correct." The court ruled that the case should go to trial. In a bizarre case of electrocution from an x-ray machine, a plaintiff was able to recover from a hospital even though the hospital successfully argued that the technician was not an employee of the hospital, but an independent contractor. The problem originated when an x-ray technician was having difficulty getting an x-ray of a child. He asked the child's father, the plaintiff, to hold the child on the table. When the x-ray was taken, the father received an electrical shock which threw him across the

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room and led to injuries. The court ruled that while the relation of the technician to the child was independent of the hospital's liability, when the technician asked the father for assistance this was "an administrative act which she performed in the service of the hospital." Rabasco v. New Rochelle Hospital 44 N.Y.S. 2d 293 (New York 1943) 217 The courts made it clear that no hospital would be "liable for acts of medical treatment by its doctors and nurses. Davie v. Lenox Hill Hospital N.Y.S. 2d 583 (1948). 218 A particularly ghastly tale of incorrect solution was related to a joint meeting of the Illinois, Indiana, and Wisconsin Hospital Associations by the Vice-President and Director of the Surgical Department of U.S. Fidelity and Guaranty Company of Baltimore. He told the group the following story: " The mistakes made in the use of wrong solutions give great anxiety to all concerned. For example, few months ago in one of our accredited hospitals, a young girl was operated upon by a surgeon of high standing who was insured by our company. The anesthetic was given by a physician specializing in anesthetics, and he was also insured. During the operation the patient showed evidence of shock, and normal saline was ordered by the anesthetist. The nurse brought the apparatus and a solution, and proper technique was used in its administration. During the administration of the fluid, an intern came into the operating room and said, 'I smell formaldehyde." What really happened was this: The nurse had used a solution of formaldehyde, and, realizing her mistake, told the intern. He rushed into the operating room, had the needles removed, but too late. The breast sloughed, leaving nasty scars, prolonging hospitalization, pain, and suffering, for which suit was brought for $10,000 against the surgeon on the assumption that he was in charge and responsible for the entire personnel of the operating room. This is a mistaken idea, for courts have ruled that the hospital is responsible for its operating room personnel, and the surgeon only for the work and orders given by him. With these facts in mind a stand was taken that the anesthetic was being given by an anesthetist paid by the hospital, and that the surgeon was responsible only for the giving of proper directions of treatment and not for the administration, as that was the duty of the hospital and the anesthetist. In order to shield the hospital, which carried no insurance, the anesthetist stated that he had a cold and could not smell or he would have detected the odor of a weak solution of formaldehyde against other odors of the operating room. The fact remained that the nurse did not have a cold. The case was settled for $5000, which could never repay the irreparable damage done to an innocent young patient through the carelessness of a nurse. John W. Martin, "Professional liability insurance for hospitals," Bulletin of the American Hospital Association 7 7 (July 1933):12-13. 219 Williams v. Pomona Valley Hospital 131 Pac. 188.

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220 In Necolayff v. Genesee Hospital 295 N.Y. 936 (1947) the plaintiff had to be institutionalized for mental illness after a nurse and intern erred and gave him the wrong blood type. Plaintiff sued for negligence in the operation of a hospital and won $6500. The court ruled that poor administration led the nurse and intern to give the plaintiff the blood intended for a patient down the hall. Again, the plaintiff was able to recover from a charitable hospital for the acts of its employees, based on the idea of poor administration of care. 221 Hogan v. Clarkeburg Memorial Hospital 59 S.E. 993. 222 Further evidence of the hospital's role as the new continuous care provider comes from many cases in which plaintiff's sue physicians for abandonment, but fail because the physician is not required to follow-up every bit of the patient's care personally. In one case a surgeon was directed to supervise an intern as he amputated a toe. The intern left in a piece of gauze which was not discovered for days after the operation when the area became increasingly infected. The court ruled that the surgeon was not liable for the patient's care after the patient left the O.R. The negligence was not in leaving the gauze in, but in failing to recognize it shortly after the operation. The surgeon was supervising the intern in the O.R., but was not expected to follow-up. Sheridan v. Quarrier 16 A. 2d 479 (Connecticut 1940). In another case a hospital requested a surgeon to oversee the house surgeon's operation on a young girl. Following the completion of the operation, but before the closing, the surgeon left. The house surgeon closed, put iodine on the wound, and then accidentally poured carbolic acid instead of alcohol on the wound to clean off the iodine. The court ruled that the surgeon was not liable because it would be unreasonable for him to assume the possibility of such an accident when there were adequately trained personnel in attendance. Richardson et al. v. Denneen 82 N.Y.S. 2d 623 (New York 1947). On the other hand, at this point in time the hospital would not necessarily be held responsible for the equipment used in surgery. In Zanzon v. Whittaker 310 Mich. 340 (1945) a physician was held liable for using a broken off drill bit, rather than the required ivory screw, to graft a patient's tibia. Later in the century the patient would most likely have sued the hospital for the broken drill bit. 223 Again some states allowed liability in the case of administrative negligence. 224 Wetzel v. The Omaha Maternity and General Hospital 148 N.W. 582. 225 O.C. Adamson II, "Medical malpractice: misuse of res ipsa loquitur," Minnesota Law Review 46 (1962): 1043. 226 Byrne v. Boadle,2 H & C 722 (1863); 1159 Eng. Rep. 299. 227 Dissenting opinion of C.J. Bond, 152 A. 633 (Maryland 1930). 228 William Prosser, "The law of torts," (New York: Key, Second Edition, 1955): 111. 229 41 N.E. 61 (Massachusetts 1895).

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230 Quoted in George Alexander Freidman, "Res ipsa loquitur: the doctrine as applied in malpractice cases," Medical Times 86 8 (August 1958): 1015. 231 This is a term which has been attributed to the San Francisco plaintiffs attorney Melvin Belli. He used it in his article, "An ancient therapy still applied: the silent medical treatment," Villanova Law Review 1 (1956):250-9. Although the concept had been spoken of throughout the century it appears that Belli gave it this name. 232 Part of that difficult time included the ability to find doctors who would testify, but those were frequently second rate physicians. Plaintiff's lawyers argued that they needed the ability to work against defense attorneys who had every expert available to them. See Sidney Shindell, "Medicine vs. law: a proposal for settlement," JAMA 151 13 (March 28 1953): 1078-80. 233 Johnston v. Winston 68 Neb. 425, 94 N.W. 607 (1903). 234 136 N. W. 741 (Minnesota 1942). 235 Maxwell M. Booxbaum, "A new approach for the disposition of malpractice actions," Industrial Board of Medicine, 171 2 (February 1958): 153. 236 Paul Ahlers, "Trends in the malpractice field," Journal of the Iowa State Medical Society, 48 11 (November 1958): 583. 237 For further evidence of the "conspiracy of silence" see Albert M. Horn, "Putting doctors back in the boat with other defendants," Alabama Law Review 8 (Spring 1956):325-31. For decisions which mention the problem see Carbone v. Warburton 11 N.J. 418, 94 A. 2d. 640 (1953); Tadlock v. Lloyd 65 Col. 40, 173 Pac. 200 (1918) and Johnson v. Winston 68 Neb. 425, 94 N.W. 607 (1903). On the other side of the issue are comments by defendants attorneys such as William F. Maratin "Comments on the problem of malpractice in New York State," Insurance Counsel Journal 22 (October 1955): 460-5; and by attorneys for the medical associations like the words of AMA's staff associate George E. Hall, in "Let's understand each other," Illinois Bar Journal 690-5. Hall wrote, "That physicians will not testify for plaintiffs in malpractice cases does not seem to be supported by any sound evidence. Maybe a personal experience can be cited here or there, but nationwide proof is lacking. How else can one account for the increase in malpractice claims." 238 Agnew v. Parks 172 Cal. App. 2d. 756, 343 P. 2d. 118 (1959). 239 Steiginga v. Thron 30 N.J. Super 423, 105 A. 2d. 10 (1954). 240 There are numerous cases of courts recognizing this problem, and it should not be necessary for me to quote them all: Gist v. French 136 Cal. App. 2d 247, 288 P. 2d 1003(1955); McGulpin v. Bessmer, 241 Iowa 119, 43 N.W 2d 121 (1950); Bartholomew v. Butts 232 Iowa 776, 5 N.W. 2d 7 (1942); Stockham v. Hall 145 Kan. 291,65 P. 2d. 348 (1937); Carbone v. Warburton 22 N.J. Super 5, 13, 91 A. 2d 518, 522 (1952); Huffman v. Lindquist 37 Cal. 2d 465, 483-4, 234 P. 2d 34, 45-6 (1951) (dissenting opinion).

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241 Boswell v. The Board of Medical Examiners 72 Nev. 20, 293 P. 2d. 424 (1956). 242 Prewett v. Philpot 142 Miss. 704 (1926). 243 Wolfe v. Feldman 286 N.Y.S. 118 (1936). 244 Editors, "In malpractice suits the thing speaks for itself, and what it says is 'damages,'" Bulletin of the American College of Surgeons, 41 6 (November-December 1956): 441. 245 R. Crawford Morris, "'Res ipsa loquitur: liability without fault," JAMA 163 12 (March 23 1957): 1055. 246 Editors, "In malpractice suits the thing speaks for itself, and what it says is 'damages,'" Bulletin of the American College of Surgeons, 41 6 (November-December 1956): 443. 247 Morris: 1055. 248 Harold Hunter, "Doctor, lawyer, and malpractice," Rocky Mountain Medical Journal 55 (April 1955) 45. 249 R. Crawford Morris, "Medical malpractice: A changing picture!" Journal of the Medical Association of Alabama 26 6 (December 1856):156. 250 One article from the period notes that in many of the cases which involved res ipsa the physicians care was often questioned more than his skill. This is an important distinction, although one which could be used in many other malpractice cases as well. In res ipsa its importance stems from the notion that juries could have an idea of appropriate care, though not of appropriate skill. No courts discuss this distinction, and it does not appear to be used as a criteria in ruling on the cases, however. Carl Wasmuth, "The problem of res ipsa loquitur," Annals of Internal Medicine 52 3 (March 1960): 729-32. 251 Poor Sisters of Saint Francis v. Long et. al 230 S.W. 2d. 659 (Tennessee 1950). 252 In a case of the x-ray burn of a patient who received x-ray therapy for papillomae on the ball of each foot, the court ruled "It cannot be said, as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised." Bennett v. Los Angeles Tumor Institute 227 P. 2d. 473 (California 1951). 253 It should be noted that attorneys did not use res ipsa when it could be avoided. There are many cases where it would seem obvious that an error and injury occurred where the attorney chose to get full testimony nonetheless. In one case a man went in with severe pain in his scrotum, and was operated for a variocele. Following the operation the surgeon, Dr. Bennetts, told the plaintiff that his testicles were perfectly healthy. However, the day after the operation the man's scrotum began to swell and over the course of the next few weeks it had to be drained and the patient had to take sitz baths. About two months after the operation the plaintiff and his mother noticed, deep in the wound, the edge of something that

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looked like a muscle. The following morning as they were changing the dressing on the wound, something stuck to the dressing: a rubber drainage tube which came out. When telephoned Dr. Bennet said, "That is fine. I left it for a drain. I am glad you found it." He then advised the plaintiff that a second operation would be necessary in order to remove the left testicle. The testicle was removed, and a drainage tube was inserted. In both operations he was assisted by a Dr. Gummess, who testified that a tube had been inserted during the first operation. Dr. Bennetts had failed to mention this to any of the interns or nurses, and failed to mention it in his operative report, although the report had a specific area for recommendations on drainage. Experts testified that drainage tubes should not be sewn inside patients, they should have a portion which sticks out and drains; no drainage leads to infection, etc. In the court's ruling it was clear that they did not feel the expert testimony was necessary: "It was shown at the time of the first operation the plaintiff's left testicle was healthy and for that reason the defendant did not remove it. Yet, 42 days later, it was in such condition that removal was deemed necessary. Although the defendant argued to the contrary, the jury's implied finding that a causal relationship existed was not purely speculative." Champion v. Bennetts 236 P. 2d. 155 (California 1951). Milias v. Wheeler Hospital 241 P. 2d. 684 (California 1952). Jackson et al. v. Mountain Sanitarium and Asheville Agricultural School et al. 67 S.E. 2d. 57 (North Carolina 1951). Stokes v. Dailey 85 N.W. 2d. 745 (North Dakota 1957). No one had to see the needle being broken off either. A broken needle in a patient's arm following an injection was evidence enough. General Benevolent Association Inc. V. Fowler 50 So. 2d. 137 (Mississippi 1951). Madis v. Stellwagen et ux, 227 P. 2d. 445 (Washington 1951). A surgeon lost a needle in the eye of a patient during surgery. He did not use an x-ray to locate the needle, and the court found that a jury could determine that this was the appropriate course of action without expert testimony. There are too many examples of this to mention them all, but a typical case is Frederickson v. Maw 227 P. 2d 772 (Utah 1957). A patient had a tonsillectomy and for the next three years suffered from great difficulty with her throat. She saw a dozen physicians in hopes of a remedy, but none could be found. Finally, one physician removed some pieces of cotton thread and gauze from the sores and ulcers in the back of the patients mouth. It was determined that there were only three possible times for the gauze to have gotten into her throat: 25 years earlier when she had molars removed, when her tonsils were removed, or a year later when she had teeth extracted. The verdict for the plaintiff was thrown out by the judge due to absence of expert testimony and she appealed. The Supreme Court held that the jury could reasonable throw out the other two possibilities, and determine liability of the defendant. See also Tiller v. Von Pohle, 230 P. 2d. 213 (Arizona 1951).

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260 Physicians and attorneys looked to California for new developments in malpractice law. There are a variety of reasons for this including experiments by the California societies, the court's progressive stance in tort law, and the work of Melbin Belli. In many cases physicians and attorneys from other states would travel to California to learn about practices there. One of these journeys is related by George H. Cary in "California Malpractice," Journal of the Michigan State Medical Society 59 (March 1960): 448-50. 261 David Louisell and Harold Williams, "Res ipsa loquitur: its future in malpractice cases," California Law Review 48 (1960): 252-70. 262 Meyer v. McNutt Hospital 173 Cal. 156, 159 P. 436 (1916). 263 Belli is either a deity or demon depending on which side of the malpractice courtroom you sit. He was a major figure in tort law from the 1950s-70s. A difficult, pompous, self-aggrandizing bully, Belli reigned as the 'King of torts" for over two decades. He won the first malpractice case for one million dollars after spending years asking "how much is a man worth?" He wrote several volumes, the best of which is his own autobiography, My life on trial: an autobiography (NY: Murrow, 1976). 264 David S. Rubsamen, M.D. "The California Medical Malpractice Picture," California Medicine 99 5 (November 1963): 293. 265 Salgo v. Leland Standford Jr. University et al 317 P. 2d. 170 (1957). 266 This is not only true for California's expansion, but for most states which allowed the doctrine in malpractice cases. See Editors, "The use of the legal doctrine of "res ipsa loquitur" in medical malpractice suits," Journal of the Louisiana Medical Society 114 4 (April 1962): 127-9. 267 Wendal J. Naraghi, "Res ipsa loquitur in California medical malpractice law: Quintal v. Laurel Grove Hospital," Hastings Law Journal 18 (March 1967): 691. 268 Ybarra v. Spangard 25 Cal. 2d. 486 (1944). 269 Ybarra, 689, my italics. 270 California had a stream of cases which quickly made this use of res ipsa common law. See Cavero v. Franklin General Benevolent Society 36 Cal. 2d. 301, 223 P. 2d. 471 (1950), Bowers v. Olch 120 Cal. App. 2d 108, 260 P. 2d. 997 (1953), Oldis v. Societe Francaise de Bienfaisance Mutulle 130 Cal. App. 2d. 461, 279 P. 2d. 184 (1955). 271 Julien C. Renswick, "Res ipsa loquitur in hospital and malpractice cases," Cleveland Mar. Law Review 9 2 (May 1960):201, my italics. 272 The close connection between the physicians and the hospital also led some to believe that the conspiracy of silence included an injunction from speaking out against hospitals. Julien Renswick writes "Perhaps the single biggest obstacle against recovery [from hospitals] is the reluctance of physicians to testify in cases against hospitals." Renswick: 199. 273 Ferrara v. Galluchio 5 N.Y. 2d 16. It should be noted that it was the testimony of a neurologist who stated the patient had "cancerophobia" that

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277 278 279 280 281

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convinced the New York State Court of Appeals to let the verdict for the plaintiff stand. Chesley v. Durant 243 Mass. 180, 183 (1922). In Tucker v. Stetson 233 Mass. 81,84 (1919) the court revived Small v. Howard 128 Mass. 131, 135, 136 (1880) which had concluded that defendants must practice with the skill of physicians and surgeons "practicing in similar localities, with opportunities for no larger experience." Meyer Goldman summarized the courts interpretation of the rule as being divided into four parts: (1) same locality, (2) similar locality, (3) corresponding conditions, or the specialist rule, and (4) ordinary practitioner. The last is the most vague. By and large the courts stuck with the first of the three until the 1920s. See "Malpractice cases in Massachusetts: law, evidence, statutes, decisions, treatises, and proposed legislation," Massachusetts Law Quarterly 40 (May 1945): 27-39. No evidence can be entered which cannot be contested by the opposing side. For example, no one can testify that a third party said something unless that third party is called as a witness and can substantiate or contradict that testimony. The textbook rule made it impossible for the defense attorney to cross examine the expert witness (the author of the book), and is the reason why this rule could only come about through statute. Mass. Ann. Laws 233 para. 79C (1949). It should be noted that Nevada enacted similar legislation this same year. Other states followed suit during the 1950s, though not all states adopted the textbook plan. Joseph F. Sadusk Jr. "Analysis of professional factors in medical malpractice claims," JAMA 161 5 June 2 1956): 442. Adamson: 1055. Goldman: 28. It was already accepted law that general practitioners would not be tried at the same standard as specialists, but the corollary required that when a practitioner was confronted with a problem that he could not diagnose or repair, he was required to refer that patient to a specialist. See Louis L. Gelber "Case histories of malpractice against physicians," Medical Record 161 11 (November 1950): 275-6; and Howard Hassard "The medical practice act, hospital law, the law of malpractice," Annals of Western Medicine and Surgery 4 9 (September 1950):450-54). It should be clear that a move to a nationally standardize medicine does not preclude examples of medical care outside the bounds of the profession. One of the most interesting examples of this is a case in which a physician used none of the standard treatments for cancer, and yet the courts moved that there was insufficient evidence to prove negligence. In essence, the court noted that there was no single path to cancer treatment established, and that this physician's treatment was not injurious, nor was it evident that other treatments, such as radiation were required by the standard. Balder v. Rogers 4 CCH Neg. Case 2d 120 (Florida 1954).

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283 This shift was so finalized that one case in which the physician was almost always found to be negligent was one in which he failed to admit the patient to a hospital. See Sheffield v. Runner et al. 17 Cal. App 820 and cases cited therein. 284 One increasing problem during the 1950s was errors in blood transfusions. As more surgical procedures involved transfusions, and the increased use of the automobile created increased numbers of injuries involving blood loss, the blood bank became an important center of care in the hospital. But there were a variety of errors which could be made including errors in taking blood, labeling, storage, and matching. Cross matching samples could be fatal. Articles on hospital responsibility and medical technology frequently warned of the dangers of transfusions. The numbers of articles on the subject increased steadily in the Index Medicus. for a sample see Albert Stump, "Some legal aspects of medical technology," American Journal of Medical Technology 19 4 (July-August 1953): 173-81. The problem prompted an interesting legal question as to whether charitable institutions were immune from prosecution for transfusion errors. For a time New York hospitals were only held responsible for medical negligence, not administrative negligence. One author pointed out "That distinction was impossibly elusive...Administering a blood transfusion to the wrong patient was held to be administrative, while administering the wrong blood to the right patient was held to be medical." Howard L. Oleck, "Doctor, lawyer and hospital administrator: a new triangle," Cleveland Marshall Law Review 8 (1959):416-23. 285 One lawyer argued that attorneys had yet to recognize how integrated health care delivery had become. He believed that the physician had far less control than was believed, particularly in the case of hospital workers. He noted that the doctor was not an "absolute commander," and wrote, "He controls and commands them [hospital workers such as nurses and interns] only indirectly, through the chains of command of the hospital administration, and then only to a limited extent," and told of the need for extensive delegation. Oleck: 416-23. 286 While they shared control, they could also be sued separately. As anesthesiologists had become more secure as a profession, the courts moved to make them responsible for their own errors. Previously some cases involving the anesthetist put the surgeon in the role of respondeat superior. But this was at a time when a nurse was frequently in charge of anesthesia. As the profession developed courts moved to recognize their new independence and responsibility. For more on this see Jackson v. Joyner 72 S.E. 2d 589 (N.C. 1952) in which a surgeon was held liable for the actions of a nurse anesthetist; Woodson v. Huey 261 P. 2d 199 (1953) in which the appeals court ruled that the anesthesiologist must carry his own weight; F.E. Camps, "Medico-legal investigations of some deaths occurring during anesthesia," NEJM 253 15 643-6; and John D. Murphy

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294 295 296 297

298

299 300 301 302

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and Stevens J. Martin, "Malpractice as related to the anesthesiologist," Anesthesiology 20 1 (1959). Editors, "Coverage and exclusions of professional liability insurance," JAMA 170 7 (June 13, 1959):813-819. American Policyholders Insurance Company v. Michota 103 N.E. 2d 817 (Ohio 1952). Harris v. Fireman's Fund Indemnity Co. 257 P. 2d 221 (Washington 1953). Maier v. U.S. Fidelity and Guaranty Co. 298 P. 2d. 391 (Colorado 1956) Shaw v. U.S. Fidelity Guaranty Co. 101 F. 2d. 988 (West Virginia 1947). Waterman v. Fidelity Casualty Co. 209 Ill. App. 284 (1917). Inevitably is a little bit strong, but I could only find one case in which the insurer was held liable under contract. In Sutherland v. Fidelity and Casualty Co. (175 P. 187 (1918) the court ruled that the contract was made in the practice of the physician's profession. This tortured logic was not repeated. Safian v. Aetna Life Insurance Co. 24 N.Y.S. 2d 92 260 (1940). Coleman v. New Amsterdam Casualty 247 N.Y. 271 (1928). U.S. Fidelity & Guaranty Co. v. Fridrich 198 A. 378 (New Jersey 1938). The policies usually made it clear that the insurer would not pay in any case in which the physician violated any law or ordinance, and these clauses were usually upheld, as in Glesby v. Hartford Accident and Indemnity Company 44 P. 2d. 365 (California 1935). A contrary case is Sheehee v. Aetna Casualty and Surety Company 122 F. Supp. 1 (1954) in which the federal district court in Louisiana ruled that failure to obtain consent did not fall under the policy's exclusion of coverage for acts of assault and battery. The court ruled that the policy covered for malpractice and that the failure to inform was an act of malpractice which led to the assault and battery. Informed consent will be covered in greater length in the following chapter. Editors, "Survey of professional liability insurance," JAMA 170 8 (June 1959): 973. Dan Tucker and Rollen Waterson, "Professional liability insurance: amount of coverage," JAMA 163 13 (March 30, 1957):1159 Albert Stump, "Adequate insurance against liability for malpractice," Journal of the Indiana State Medical Association 44 7 (July 1951):577-8. Joseph F. Sadusk, "What price malpractice insurance?" New York State Journal of Medicine 56 (May 1956):1679. These figures are for the total amount of claims arising in one year. Insurers would pay $5000 per claim and up to a total of $15,000 per year in the first instance. Despite the United States Supreme Court ruling in U.S. v. Southeastern Underwriters 322 U.S. 533 (1944) which held that insurance is interstate commerce and thus subject to federal regulation, the federal government did not enter the field of insurance regulation. In June of 1945 Congress passed a measure (P.L. 15, 79th Congress) reaffirming the states' right to

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306 307 308 309 310 311 312 313 314 315

Endnotes regulate insurance and stipulating that the federal government would only become involved to the extent that the business was not regulated by the states. Editors, "State regulation of professional liability insurance rates," JAMA 464 3 (May 18 1957): 306. Sadusk, "What price malpractice insurance," 1678. In addition to the problem of "the tail," another cause for the lack of profit shown by insurers was the physicians' use of group policies. The majority of state societies followed the New York State Medical Society's lead and organized purchasing collectives for liability coverage, and as the national specialist organizations increased in size and loyalty, they too were able to negotiate for discounted coverage for their member physicians. Actuarials were able to assess the risk of individual specialties and thus the cost of those risks. The American Society of Anesthesiologists was the first to secure a group policy for its members which took advantage of this assessment. An anesthesiologist who purchased insurance, even through the collective of his state organization, frequently had to pay more given the risk of his work. The Society was able to negotiate a lower rate than many of the members could obtain and offered this group rate in 1954. In the next two years the American College of Physicians, the American College of Surgeons, the American College of Pathologists, and the National Medical Association all organized group policies for their members. Editors, "Report on the professional liability insurance and prevention program," JAMA 160 5 (February 4, 1956): 396. Henry F. Ulrich, "Malpractice suits may be avoided," Maryland State Medical Journal 3 (1954): 657. Louis J. Regan, "Malpractice an occupational hazard, JAMA 156 14 (December 4, 1954):1317-18. C. Joseph Stetler, "Malpractice: a national problem," Nebraska Society Medical Journal 44 (March 1959): 122. Editors, "Coverage and exclusions of professional liability insurance," JAMA 170 7 (June 13, 1959):813-19. Editors, "State regulation of professional liability insurance rates," JAMA 164 3 (May 18, 1957): 306. Ulrich: 657. Ulrich: 658. My italics. Editors, "These are rules for avoiding liability in office practice, where many malpractice claims originate," Bulletin of the American College of Physicians 41 4 (July-August 1956):169. Ibid. Already a significant number of physicians and psychologists believed that suits were increasing from a breakdown in doctor-patient relationships. Articles detail the "suit prone" patient, and "arrogant aloof surgeon." This became a trope that was never backed up by any research.

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321 322

323 324 325 326 327 328 329 330

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One psychologist studies low suit and high suit hospitals, and attempted to demonstrate a connection, but his date did not back him up. The low suit hospitals were more "competent," the trustees more involved, and the privileges more selectively given out. None of these points to any aspect of the doctor-patient relationship. See Editors, "Breakdown in doctorpatient relationship is shown by malpractice suits, say psychologists in C.M.A. study [by Richard Blum]," Bulletin of the American College of Surgeons 44 3 (May-June 1959): 137-40+. Paul Ahlers, "Trends in the malpractice field," Journal of the Iowa State Medical Society 48 11 (November 1958): 585. Editors, Bulletin of American College of Physicians 41: 170. Oblinger, Walter L. "The malpractice suit and you," Illinois Medical Journal 114 6 (December 1958): 267. Although the typical town of over one million people garnered 45 suits, the larger supply of physicians in such towns dilutes the odds of any individual physician in that town being sued. Andrew Sandor, "The history of professional liability suits in the United States," JAMA 163 6 (February 9, 1957):464-466. In 1955 the Mississippi University Medical Journal inserted a flyleaf sheet entitled "Medical Malpractice Prophylaxis: Use Recognized Diagnostic Aids" which had a single paragraph from an article by Louis J. Regan recommending "a series of x-rays taken at interval during the progress of the case." Mississippi University Medical Journal 77 (4) (August 1955). Louis J. Regan, "Report on study of professional liability insurance and prevention program," JAMA 160 5 (February 4 1956): 395. The American Academy of General Practice, American Academy of Obstetrics and Gynecology, American Academy of Orthopedic Surgeons, American Academy of Pediatrics, American College of Radiology, American Hospital Association, and the Southern Medical Association offered no coverage. The American College of Physicians, American College of Surgeons, American Society of Anesthesiologists, College of American Pathologists, and the National Medical Association offered or endorsed coverage. Sadusk: 444. Law Department of the AMA, "1963 professional liability survery," JAMA 189 11 (September 14 1964): 860. Committee on Medico-Legal Problems, "Professional Liability and the Physician," JAMA 183 8 (February 23 1963):695. Sidney Shindell, "Epidemiology of professional liability losses," JAMA 190 9 (November 30 1964):820. Ibid. Ibid. Shindell: 828. Louis J. Regan, "Opinion Survey on Medical Professional Liability," JAMA 164 14 (August 3 1957): 1586.

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331 The forms were sent to the journal by the AMA's Law Department with a recommendation to publish. Editor, "Medico-legal forms with legal analysis," Wisconsin Medical Journal 57 (January 1958):3-58. Like other states Wisconsin made certain that physicians thought about the importance of forms. One year earlier, the editors published "25 pointers to prevent malpractce," Wisconsin Medical Journal 56 (January 1957):715. The article contained copies of proper consent forms, and even of proper letters for a physician to send to patients and place in the record when the patient failed to carry out advice, did not appear for an appointment, discharged the physician, and when the physician withdrew. 332 Joseph F. Sadusk Jr., "Joint AMA - AHA Committee on Professional Liability," JAMA 170 6 (June 6 1959): 673-4. 333 Sadusk (1959): 674. 334 August H. Groeschel, "The joint medico-legal education committee of the hospital," JAMA 170 8 (June 20 1959):947. 335 Groeschel: 948. 336 Editors, "The doctor loses," Time 37 (May 26 1941): 47. 337 Editors, Time 44 (July 24 1944): 54. 338 Miles Atkinson, "Too much surgery?" American Mercury 53 (December 1941):731. 339 Albert Deutsch, "Unnecessary operations," Readers Digest 51 (December 1947): 69. 340 Hawley's interview with U.S. & World Report appeared in February 20 1953. Many other publications reported on the interview, including the New Republic (see Editors, "No unnecessary surgery," New Republic 128 (May 11 1953): 8.). The interview was also published as "Needless surgery: doctors good and bad," in Reader's Digest 62 (May 1953): 53-7. 341 Dr. I.S. Ravdin told surgeons at a meeting of the AMA to "stop overcharging for operations," cut out needless operations, and put a halt to fee splitting. Editors, "Speaking of operations," Newsweek 38 (July 9 1951): 55. Dr. James C. Doyle of USC studied hysterectomies and reported in JAMA that up to one-third of all hysterectomies were unnecessary. The article generated an article by Lois Mattox Miller, "Hysterectomy: medical necessity or surgical racket," in Reader's Digest 63 (August 1953): 82-4. 342 Editors, "Operations needed and not," Newsweek 50 (August 5 1957): 8892. 343 Miriam Chapin, "Who protects the patient," The American Mercury 71( September 1950): 259-65. 344 Editors, "Operation confusion" Time 64 (December 1 1958): 64. 345 Editors, "The dangerous doctors," Time 55 (May 8 1958): 41-2. 346 Rose C. Huth, "Guilty doctor," American Mercury 82 (February 1956): 35.

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347 Some of the one column pieces would simply be a rundown of recent suits, see Editors, "Surgeon in court," Time 71 (January 20 1958): 66. 348 Darby Stranton, "What is malpractice?" American Mercury 86 (May 1958): 90. 349 Stranton: 91. 350 Milton Silverman, "Medicine's legal nightmare[ Part One]," Saturday Evening Post 23 (April 11 1959): 13. 351 Ibid. 352 Milton Silverman, "Medicine's legal nightmare[ Part Three]," Saturday Evening Post 23 (April 25 1959): 122. 353 Ibid. 354 Bill Donaldson, "Five hours from death," Look (March 1960): 72. 355 Donaldson: 73. 356 Donaldson: 70. 357 Donaldson: 77. 358 Editors, "The ungrateful patient," Newsweek 57 (January 9 1961): 40. 359 Editors, "When a doctor errs," Newsweek 72 (August 19 1968): 54. 360 Arthur H. Clephane, "Pre-litigation at County Levels," Pennsylvania Medical Journals 63 (July 1960): 1035-8, and Robert O. Lester, "Pima Country Screening Plan," Arizona Medicine 17 (July 1960): 379-83. These are the two most prevalent forms of county committees. For more on county committees see also a special malpractice issue of the Federation of Insurance Counsel Quarterly 20 (Winter 1969-70), particularly the article by David J. Kadyk. 361 Irving H. Soden, "The New Hampshire Plan," Federation of Insurance Counsel Quarterly 20 (Winter 1969-70): 14-16. 362 Donald F. Featherman, "The medical review and advisory system," Journal of the Medical Society of New Jersey 63 (September 1966): 4234. 363 Robert L. Wyckoff, "Courtesy and malpractice," Medical Times 90 (July 1962): 677-9. 364 George E. Shambaugh, "Fuel on the fire of malpractice claims," Archives of Otolaryngology 89 (March 1969): 443-4. 365 Some attorneys began to call for a further expansion of the work of malpractice boards, including removing malpractice suits from the courts altogether. Because lawyers had difficulty obtaining expert testimony and physicians objected to being tried by a jury of laymen who they did not regard as their peers, some suggested the creation of special malpractice courts presided over by judges with both a legal and a medical degree. See Albert L. Cohn, "Medical malpractice litigation: a plague on both houses," American Bar Association Journal 52 (January 1966):32-4. 366 These sorts of standards have only begun to be implemented widely in the 1990s as large health care organizations look for ways to reduce the costs of care, and to provide uniform care to all of their clients.

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367 In particular sponge counts were a problem for hospitals. Case law had shifted against them. While the sponge nurse had for a moment been regarded as under the aegis of the surgeon several cases made it clear that the courts put the responsibility of a successful sponge count onto the hospital Rural Education Association v. Bush 54 Ohio L. Abs. 254, 83 N.E. 2d 644 (1948); Shull v. Schwartz 364 Pa. 554, 73 A 2d. 402 (1950); Wilson v. Lee Memorial Hospital Fla. Sup. Ct. 65 So. 2d. 40 (1953). 368 Silverman: 119; Mark Berke et al, "Physician is protected when public is informed about malpractice, say lawyers, doctors and hospital heads," American College of Surgeons 43 (July-August 1958):157-65. 369 Loose talk finally received an article of its own with Phillip L. Rossman "'Loose talk' and malpractice suits," Post Graduate Medicine 38 (July 1965): A48-56. Rossman begins, "Periodic repetition of simple truths is professionally healthy," but probably did not know just how old and repetitious his advice was. 370 Herbert R. Zatzkin, "Malpractice prophylaxis," New York State Journal of Medicine 60 (March 16 1960): 906. The number of "lists" of ways to avoid suits prevents me from going into many of them here. Other interest list items include "Do not undertake a case which should not be done no matter how much pressure is put on you by the patient," in Charles Moyley "Presidents page: the malpractice menace, "Delaware Medical Journal 41 (July 1969): 227; "Do not make it known that you carry malpractice insurance," in Russell S. Fisher, "Malpractice actions and prophylaxis," Maryland State Medical Journal 9 (May 1960): 251-4; "Settle a meritorious claim out of court," in Editors, "Professional liability," Wisconsin Medical Journal 62 (January 1963): 48-9; and "Use large and frequent doses of tact," "Avoid any premature statement which might be construed as an admission of fault on your part," and "Don't experiment," in Editors, "What is your best defense against malpractice?" Wisconsin Medical Journal 62 (January 1961): 25-33. 371 Van A. Hagenbaugh, "Report" Western Medicine (July August 1967): 139. 372 O.T. Mallery and Nancy Bielefield, "Liability in Orthopedics," New York State Journal of Medicine 69 (July 1, 1969): 1937-40. 373 Arthur H. Clephane, "Recent trends in malpractice," Pennsylvania Medicine 63 (June 1960): 858. 374 Joseph F. Sadusk, "Professional liability as a new problem in the practice of medicine," Medical Times 89 (August 1961): 776. 375 Thomas A. Martin, "Changing concepts of malpractice laws," Journal of the Maine Medical Association 53 (August 1962): 197. 376 Joseph F. Sadusk, "Some observations on causes of professional liability," Medical Annals of the District of Columbia 33 (March 1964): 109.

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377 Albert C. Gogoski, "Medical malpractice: a trial lawyer looks at physician's problems," American Journal of Proctology 16 (April 1965): 138. 378 Don Harper Mills, "Malpractice in the clinical laboratory," Science 144 (May 1964): 638. 379 Editors, "The critical malpractice problem," Archives of Otolaryngology 89 (May 1969): 27. 380 Bernard Hirsh, "Medical liability," JAMA 205 (July 15 1968): 207-8. 381 Joseph Turow, "Playing doctor: television, storytelling and medical power," (New York: Oxford University Press, 1989): 62-5 382 D.N. Malone, "Letter to the Editor," JAMA 183 9 (March 1963): 805. 383 Giambozi v. Peters 127 Conn. 380, 16 A. 2d 833 (1940). 384 Capucci v. Barone 266 Mass. 578, 165 N.E. 653 (1929). 385 Oliver C. Schroeder, "Malpractice and the physician: procedural problems," Postgraduate Medicine 38 (July 1965): A-50. 386 Picket v. Aglinsky 110 F. 2d 628 (4th Cir. 1940); Draws v. Levin 332 Mich 447, 52 N.W. 2d 180 (1952). 387 Morrison v. Acton 68 Ariz. 27, 198 P. 2d 590 (1948). 388 For a list of the relevant cases and more on the discovery rule see Paul J. Katz, "Medical malpractice: a survey of statutes of limitation," Suffolk University Law Review 3 (1969):597-613. 389 Layton v. Allen 246 A. 2d 794 (Delaware 1968). 390 Neil L. Chayet, "Malpractice: statute of limitations," NEJM 275 (July 7 1966):43. 391 Bing v. Thunig 143 N.E. 2d 3 (New York 1957). 392 Bakal v. University Heights Sanitarium 302 N. Y. 870 393 Joe Edelman, "How to adapt to the Charleston decision," Modern Hospital 107 (October 1966): 137-40. 394 John F. Horty, "Hospital doomed by legal tides," Modern Hospital 102 (May 1964): 40-42. 395 Hand's quote is from the justly famous The T. J. Hooper (2d cir 1932) 60 Fed. 2d 737, 740. 396 Quoted in Editors, "Courts hold hospitals responsible for medical care," Modern Hospital 105 (November 1965): 97. 397 Carl Miller, "Malpractice used as a hospital defense," Cleveland Marshall Law Review 10 (January 1961):1-9. Miller notes that in Morwin v. Albany Hospital 185 N.Y.S. 2d 85 (1959) the hospital argued that the physician had committed malpractice, and therefore the hospital could not be held liable for negligence. In Davis v. Eubanks 167 N.E. 386 (Ohio 1960) the hospital argued that the nurse was guilty of malpractice, and because it was a case of malpractice the Ohio statute of limitations was a bar to action. This malpractice also meant that the hospital was not liable. 398 Quoted in Editors, "Courts hold hospitals responsible for medical care," Modern Hospital 105 (November 1965): 97. 399 Brune v. Belinkoff 235 N.E. 2d 793 (Massachusetts 1968).

190 400 401 402 403

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Pederson v. Dumouchel 43 P. 2d 973 (Washington 1967). George E. Hall, "The locality rule," JAMA 207 (January 20 1969): 628. Hundley v. Martinez 158 S.E. 2d 159 (Wet Virginia 1967). McElroy v. Frost 268 P. 2d 273 (Oklahoma 1954): x-ray therapy; Giles v. Tyson 13 S.W. 2d 452 (Texas 1929): x-ray examination. See also Editors, "Medical specialties and the locality rule," Stanford Law Review 14 (July 1962): 884-93. 404 Editors, "Medical specialties and the locality rule," Stanford Law Review 14 (July 1962): 889. 405 Bruce Kent, "The locality doctrine and the standard of care of the physician," Washburn Law Journal 8 (1969): 350. 406 Ethically, a physician happening upon an emergency, for example a car accident, was required to render care. According to the AMA Code of Ethics the doctor must "respond to any request for his assistance in an emergency." But physicians apparently ignored that ethical requirement, and they blamed a fear of malpractice suits. In a survey of Florida physicians over one third said that they did not and would not stop at an accident to offer emergency care. A 1961 nationwide survey by the Medical Tribune discovered that more than half of the respondents would not stop to assist an accident victim. In 1959 a California assemblyman from Berkeley, Byron Rumford, chairman of the California Legislative Public Health Committee, heard an upsetting story which he told repeatedly, and which was subsequently published as fact in publications ranging from the Columbia Law Review to Reader's Digest. According to the story, a skier in the Sierra Madre mountains took a spill, and was crying out in pain. Despite the fact that several doctors were in the area, none would attend to the injured man. Assemblyman Rumford decided to take legislative action and pushed a "Good Samaritan" law through the California legislature in 1959. The statute relieved physicians of civil liability when they rendered emergency care in good faith at the scene of an emergency. The statute was quickly taken up by legislatures across the country. When a physician told a Nevada state senator that Nevada needed such a statute the senator balked, not believing that physicians would fail to come to the aid of the injured just out of a fear of lawsuits. The senator was convinced to ask the next physician he met if he would be willing to do so. A few moments later he posed the question to a urologist, who replied, "Hell, no." Nevada soon had its own "Good Samaritan" law, and by 1963 twenty-four states had adopted similar statutes. The problem the laws sought to remedy is quite clear: because of their fear of suits, physicians would not help people needing emergency aid. Physicians and legislators were convinced that physicians who helped out in an emergency were routinely sued, but was not the case. There is not a single instance of an appeals case resulting from a physician who stopped to give emergency aid. In all of the literature on the good Samaritan problem there

Endnotes

191

is only one instance cited, and that case occurred in the Virgin Islands. Even JAMA reported that there was no risk from this type of suit. The editors of JAMA referred to concerns over the problem as "exaggerated." Governor Kerner of Illinois vetoed the bill saying, "so far as I can ascertain the attendant danger of [malpractice suits] is largely, if not wholly imagined. A systematic inquiry has failed to disclose a single roadside instance." Governor Rockefellar of New York vetoed the bill on similar grounds. If there were no suits against physicians for this kind of aid, then why were they failing to stop to help victims of accidents? The supporters of the legislation said that whether there were suits or not, physicians fear of suits prevented their stopping at accidents and therefore the bill was still warranted. Few considered the possibility of mandating that physicians must stop at accidents. A closer look at the results of the Florida survey reveals that physicians also had other reasons for not wanting to stop at accidents. Physicians did not want to have to take the time to travel with the patient to the hospital. Others indicated that once they became involved with an accident victim, that would create a duty for them to have a continued relation with what would now be a patient. They did not want to have to deal with this continued relation. A 1963 survey by the Law Department of the AMA showed that in all states 48.5% of physicians were unwilling to help a stranger. In those states which enacted good Samaritan laws even more physicians - 50.5% - were unwilling. This indicates that the statutes had no effect, and that there was more to physician unwillingness to help strangers than the mere fear of suits. The bills passed because they did no harm to anyone. The language of the bills was such that plaintiffs attorneys could get around it if necessary. Frequently the bill protected the physician from "ordinary negligence" and plaintiff's lawyers would have sued for "gross negligence." Doctors would be happy to feel a bit more protected, and citizens would hail their legislators for protecting the accident victims. Only lawyers interested in constitutional issues pointed out that there were major problems with the bills. First the bills set up physicians as a separate class free from suit. If an average citizen raced to the accident to help the victim, but failed to improve the victim's condition or to seek out help in a timely fashion, that citizen could face suit. Second, the suit exonerated physicians from negligent harm, when perhaps there should be no exoneration. As one attorney pointed out, it was already very difficult to mount a successful case against a physician. Even in an accident case a plaintiff's lawyer would need expert testimony saying that the physician had failed to perform to the standard of care in an emergency. The author states, "the body of law which has developed in this area is already so favorable to physicians that further immunity is just icing on the cake." The public perception of the Samaritan laws was equally skewed. The producers of Dr. Kildare decided to showed their independence from the AMA and selected a script in which Dr. Kildare was accused of malpractice, brought

192

Endnotes

to trial, and forced to pay a judgment. To avoid losing AMA approval, they created a story about Kildare delivering a baby for a woman stranded by the road. The baby died and Kildare was sued for $55,000. A hospital warranty paid for $50,000 of the judgment, but Kildare had to pay the remaining $5000. Producer Norman Felton managed to keep the AMA happy, but he had raised the ire of the American Bar Association with the negative portrayal of the plaintiff's attorney, the nature of the suit, and the amount of the damages. The ABA attorneys noted that the show had chosen a type of suit which had never occurred, and threatened to sue Felton and NBC if they aired the show again. Felton had intended to run the show twice more but fearing suit he and NBC chose not to. Physicians were not sued when they helped strangers in emergencies, but the tale of a "Good Samaritan" doctor sued by an ungrateful patient had melodramatic appeal. The story of a helpless skier had so impressed the California legislature that they passed the first "Good Samaritan" law. Other states quickly followed despite the fact that legal scholars saw no need, and warned that the laws were poorly written and unconstitutional. Surveys of physicians, even in states that had passed a statute, continued to report that half of them would not help a person in an emergency. Super-physician Dr. Kildare was willing to help such a patient, and as a result, he became the only physician in history to ever lose such a suit. Unjust malpractice actions were kryptonite even for the great Kildare. 407 U.S. Congress. Senate. Committee on Government Regulations. Subcommittee on Executive Reorganization. Medical malpractice, (U.S. Government Printing Office: 1969). 408 U.S. Congress. Senate. Committee on Government Regulations. Subcommittee on Executive Reorganization. Medical malpractice: 1. 409 The Dartmouth Atlas of Health Care by Dartmouth Medical School Center for the Evaluative Clinical Sciences (Dartmouth: Dartmouth University Press, 1998). This impressive atlas demonstrates that care widely varies from region to region and locality type to locality type. From beta blocker use following MI to antibiotic prescriptions for acne care standards vary dramatically.

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Index 77 Sunset Strip, 144

Dartmouth, 56 defensive medicine, 69, 143 Delaware State Medical Society, 146 diathermy, 68

Aetna Insurance Company, 50 AHA, 93 Alameda Contra Costa Medical Association, 117 Alameda Costa County Board, 146 AMA, 93, 96 American Hospital Association, 78 American Medical Association, 2 American Mutual Liability Insurance Company of Boston, 117 Andrew Sandor, 126 anesthesia, 114

Employers Mutual, 53 experimentation, 39 expert testimony, 105, 106, 107 expert witness, 11, 16, 22, 27, 31, 35, 36, 47, 55, 61, 84, 86, 106, 109, 116, 160, 163, 178, 205, 225, 249, 307 F. Konig Frost, 56 Federal Department of Health, Education and Welfare, 139 Flexner report, 70 fluoroscopes, 57

blackmailers, 32 board certification, 31 burden of proof, 109

George Gay, 44 George W. Gay, 43 George Whiteside, 48

California Hospital Association, 148 Charitable Hospitals, 98 Charitable Immunity, 154 circumstantial evidence, 111 Committee on Malpractice Defense and Insurance of the Medical Society of New York, 52 community standards for care, 31 Competition, 30 conspiracy of silence, 105, 113, 117, 143 contingency fee, 150

Hartford Accident and Indemnity Company, 146 Harvard Medical School, 56 Hippocratic Oath, 90 homeopathy, 32 Hospital, 20, 22, 59, 63, 78, 94, 95, 96, 98, 111, 133, 148, 154, 155, 156, 157, 158, 185, 188, 192, 193, 194, 196, 197, 198, 202, 203, 204, 212, 216, 219, 225, 227, 230, 231, 233, 234, 235, 238, 244, 250, 251, 256, 257, 258, 259, 260, 261, 264,

255

256 267, 269, 276, 279, 285, 286, 288, 290, 291, 292, 293, 294, 296, 298, 299, 302, 303, 308, 309, 310, 312 Hospital Bureaucracy, 96 Hospital Liability, 94 hospitals, 116, 119 I.S. Trostler, 45, 46, 72, 83 I.S. Trostler's, 47 impoverished patient, 78 improvement of care, 134 informed consent, 80 Inopportune remarks, 74 insurance, 40, 41, 46, 119 insurance companies, 42 Iowa State Medical Society, 58, 89 James Lewis, 53 James Taylor Lewis, 38, 52 Joseph Sadusk, 129, 150 Kansas Medical Society, 85 laryngoscope, 55 Lewis, 42, 44 Lewis's, 47 libel, 120 Lloyds of London, 53 Locality Rule, 159 locality standard, 62 Look magazine, 144 Massachusetts, 39, 43 Massachusetts Medical Society, 40, 41 Medical Defense, 36 medical journals, 36 medical records, 55 Medical Society of the State of New York, 37 Melvin Belli, 112

Index microscope, 55 Minnesota Supreme Court, 60 Nebraska Legal Defense Committee, 47 Nebraska State Medical Association, 47 New Hampshire Medical Society, 146 New York, 42 New York County Medical Association, 32 New York Medical Society, 49 New York Society's Medical Defense, 107 New York State, 48 New York State Board of Social Welfare, 97 New York State Medical Society, 36, 48 New York State Medical Society's, 47 New York State Society, 45 number of lawyers, 70 number of physicians, 70 nurses, xv, 68, 96, 99, 114, 115, 119, 127, 142, 154, 155, 157, 158, 194, 195, 196, 202, 207, 231, 298 opthalmascope, 55 Paul Ehrlich, 55 Pennsylvania Hospital, 59 Physician Advice Literature, 71 Pike v. Honsinger, 1 public expectation of physicians, 150 Radiological Society of North America, 47 radiologists, 62, 69 records, 76

Index

257

res ipsa loquitur, 64 Res Ipsa Loquitur, 103 respondeat superior, 93, 98, 99, 159 Ribicoff Committee, 166 Sidney Shindell, 130 Silas A. Lewis, 76 sphygmometer, 55 spirometer, 55 Sponge count, 148 standard of care, 29, 110 standardization, 72 Stanley Joel Reiser, 55 statute of limitations, 78 Statutes of Limitations, 152 stethoscope, 55 Supreme Judicial Court Massachusetts, 104

of

technician, 59, 62, 63, 67, 88, 195 technicians, 119 thermometer, 55 Thomsonianism, 32 Time magazine, 83, 140

United States Senate, 139 unnecessary surgeries, 141 Walter Cannon, 56 Washington State Supreme Court, 57 Whiteside, 49, 52 William Howard Taft, 104 x-ray, 34, 35, 36, 38, 46, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 71, 77, 83, 87, 88, 90, 91, 100, 106, 108, 110, 111, 120, 126, 127, 128, 163, 170, 183, 184, 185, 186, 195, 201, 202, 220, 242, 264, 291 x-ray burn, 66, 67, 201 x-ray burns, 46, 60, 65, 68, 92, 110 x-ray plates, 57 Yorkshire Indemnity Company, 52