1 A small sample of statistics gives a rough picture of the overall situation. In New York, the number of suits brought against physicians rose from 564 in 1970 to 1,200 in 1974, while the average cost of a settlement of a malpractice claim rose over the past decade from $6,000 to $23,400. Malpractice: MD's Revolt, Newsweek, June 9, 1975, at 59 [hereinafter cited as MD's Revolt]. In Illinois, 1,010 of Cook County's 7,100 physicians were sued in the 14-month period from January 1, 1974, to March 1, 1975. The average settlement in 1974 was nearly $22,000, as against $14,000 in 1970. Ronald Kotulak, Malpractice Suits–Growing Sickness, Chicago Tribune, May 11, 1975, sec. 1 at 1, col. 1.Google Scholar

The St. Paul Fire and Marine Insurance Company had in 1969 one claim pending for every 23 doctors it insured. In 1974, the comparable ratio was one for every 10. St. Paul Fire and Marine Insurance Co., Preserving a Medical Malpractice Insurance Marketplace: Problems & Remedies, at 1 (Jan. 1975) (Position Paper and Backgrounder) [hereinafter cited as Preserving Insurance Marketplace].Google Scholar

Premiums, not surprisingly, have jumped; 300 percent rate increases for medical malpractice insurance have not been uncommon, with even greater percentage increases in the high risk specialties where premiums are highest. Thus between 1970 and 1975 there has been a seven-fold increase in the average cost of malpractice insurance for high risk doctors who are members of the Illinois State Medical Society insurance program. Chicago Tribune, May 11, 1975, sec. 1 at 10, cols. 3–5 (graph). The premiums charged for orthopedic surgeons and neurosurgeons are now more than $21,000 annually in New York. Preserving Insurance Marketplace at 14 (exhibit 3).Google Scholar

For an exhaustive state-by-state rundown, see State-by-State Analysis of Physicians Medical Malpractice, American Medical News, Feb. 24, 1975, reprinted in An Overview of Medical Malpractice 205, Staff of House Comm. on Interstate and Foreign Commerce, 94th Cong., 1st Sess. (Comm. Print No. 4) [hereinafter cited as Overview].Google Scholar

2 For example, rates charged for hospital malpractice insurance by the major underwriter in Illinois increased 561 percent in 1975, bringing the average premium per hospital bed to $1,511 per year. Chicago Tribune, Sept. 11, 1975, sec. 1 at 2, col. 5. And the costs of office visits and surgeons will clearly increase because of the increase in doctors' premiums. Kotulak, supra note 1, at 10, col. 2.Google Scholar

3 Indeed one of the major practical concerns created by the increase in malpractice insurance premiums is the inability of young physicians starting out in practice to meet their insurance costs, which are, after all, only one of the many costs to be covered by the gross income from their practice.Google Scholar

In general, it is safe to say that too much has been made of the ability of physicians and insurance companies to pass on the costs of increased malpractice losses. To the extent that these losses arise out of incidents in past years, there is no way for either physicians or insurance companies to recoup these “sunk costs” by charging high rates for future services. Companies not faced with past losses will make efforts to maximize profits no matter what the market structure. And those companies have no incentive to increase rates if faced with past debts, even those that are unanticipated, as no such shift will make them better off. The allocation of these losses between the companies and the physicians therefore will be a function of the levels of coverage acquired by physicians (in days before $1 million verdicts were commonplace) and the levels of premiums charged. As the increase in both number of suits and size of verdicts has been largely unanticipated, the losses have been substantial with the insurance companies most likely bearing most of the loss, although cases in which physicians have been forced to come out of pocket are not unknown.Google Scholar

4 See MD's Revolt, supra note 1, at 58, for accounts of the California and New York incidents. In New York, 1,500 physicians held “a howling, jeering demonstration” that came close to physical violence on the grounds of the New York State Medical Society. In Northern California, surgeons and anesthesiologists were on strike for more than five weeks.Google Scholar

5 The Argonaut Insurance Company of California, e.g., dropped its New York coverage, effective July 1975. Pacific Indemnity Company of Los Angeles and State Insurance Company of Milwaukee dropped 2,000 Los Angeles physicians in January 1975.Google Scholar

The St. Paul Fire and Marine Insurance Company, one of the nation's largest malpractice carriers, has threatened to discontinue coverage, and as of July 1, 1975, it shifted from an “occurrence policy” to a “claims-made policy” for all its new malpractice insurance contracts. Under the occurrence policy, the company agrees to cover the physician for all incidents that arise out of his practice during the covered period. Under the claims-made policy, the company agrees to provide insurance only for suits initiated during the year of coverage, coupled with options to purchase coverage in later years, quite possibly at increased rates. The problem with the occurrence policy is that current conditions make it impossible to estimate the costs of the “long tail” of protection many years in the future, when actions for incidents covered by the policy are often brought. With claims-made policies the physician, in exchange for lower initial rates, in effect takes the risk of these future claims, and the company is thereby relieved of some of the burdens of estimating premiums. Claims-made policies have a certain attraction for physicians just starting out and the initial premiums are therefore low, because few suits are brought in the year in which the services were rendered. But premiums increase over time, as with each passing year incidents for all previous years are converted first to lawsuits and then to judgments. Older physicians do not like claims-made at all, because it means that in some cases they will have to pay premiums even after retirement. But St. Paul's message is clear. “If claims-made is accepted; works; halts underwriting losses, and develops the prospect of a reasonable profit, we'll stay. If it doesn't work, then our only alternative is to abandon this business entirely.” St. Paul Fire and Marine Insurance Co., “Claims-Made” Hospital Professional Liability Insurance, at 8 (June 1975) (One of a series of backgrounders and position papers on the medical malpractice crisis).Google Scholar

6 See Medical Malpractice: Report of Department of Health, Education, and Welfare, the Secretary's Commission on Medical Malpractice at 18 (Washington, D.C., 1973) [hereinafter cited as HEW Report on Malpractice], where it is reported that these cases take two to three times longer to try than ordinary personal injury actions. See also Jeffrey O'Connell, Ending Insult to Injury 29–47 (Urbana: University of Illinois Press, 1975).Google Scholar

7 For an account of the way in which traffic rules set the standards in most automobile cases, see Richard A. Epstein, A Theory of Strict Liability, 2 J. Leg. Studies 151 (1973) [hereinafter cited as Epstein, Strict Liability], and Richard A. Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J. Leg. Studies 165, 174–85 (1974). The tendency in these cases to transform the inquiry from the broad question, “Did the defendant exercise reasonable care under all the circumstances?” to the narrow one, “Did he drive on his side of the road?” was pointed out graphically by Holmes in The Common Law, 111–14, 123–29 (1881). Although Holmes never fully prevailed in his efforts to take accident cases from the jury whenever a uniform rule appeared applicable–see Baltimore & O.R.R. v. Goodman, 275 U.S. 66 (1927) and the criticism of Cardozo, J., in Pokora v. Wabash Ry., 292 U.S. 98 (1934)–Holmes's approach is still implicitly adopted in the vast majority of automobile cases, especially those settled out of court. See H. Laurence Ross, Settled Out of Court: The Social Process of Insurance Claims Adjustments 98–99 (Chicago: Aldine Publishing Co., 1970), for a clear confirmation of the point.Google Scholar

8 For recent decisions that give a most narrow construction to the defense of assumption of risk, see, e.g., Carr v. Pacific Telephone Co., 26 Cal. App. 3d 537, 103 Cal. Rptr. 120 (1971); Fonseca v. Orange County, 28 Cal. App. 3d 361, 104 Cal. Rptr. 566 (1971); Runnings v. Ford Motor Co., 461 F. 2d 1145 (9th Cir. 1972). There has been a persistent movement to eliminate assumption of risk as a separate category of defense, except in cases of assumption of risk by contract. See Fowler V. Harper & Fleming James, Jr., 2 The Law of Torts sec. 21.8 (Boston: Little, Brown & Co., 1956) [hereinafter cited as Harper & James, Torts]. ld. (Supp. 1968) at 105–11, where Professor James takes the Restatement (Second) of Torts to task for retaining assumption of risk even in its limited form. The analysis in Harper & James has been adopted in a number of cases. See id. at 119. The leading case is Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A. 2d 90, 82 A.L.R. 2d 1208 (1959).Google Scholar

9 See Nga Li v. Yellow Cab Co., 13 Cal. 3d 804, 532 P. 2d 1226, 119 Cal. Rptr. 858 (1975), for a major statement of the case against the rule that contributory negligence is a complete bar to the plaintiff's cause of action. As of the time of that decision, 25 states had adopted, by common law or by statute, some form of comparative negligence.Google Scholar

10 See, e.g., Haft v. Lone Palm Hotel, 3 Cal. 3d 756, 478 P. 2d 456, 91 Cal. Rptr. 745 (1970), where the court resorted to heroic measures to allow a jury trial on facts that in previous days would have clearly supported a directed verdict for the defendant.Google Scholar

In a footnote, the court noted that its decision was “consistent with the emerging tort policy of assigning liability to a party who is in the best position to distribute losses over a group which should reasonably bear them.”id. at 775 n. 20, 478 P. 2d at 477, n. 20, 91 Cal. Rptr. at 757, n. 20. Indeed the decision is defensible on no other ground.Google Scholar

11 See Restatement (Second) of Torts sec. 402A; William A. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966), for a discussion of the privity question.Google Scholar

For a general overview of the law of products liability, see Dix W. Noel & Jerry J. Phillips, Products Liability in a Nutshell (St. Paul: West Publishing Co., 1974).Google Scholar

12 See, e.g., Messick v. General Motors Corp., 460 F. 2d 485 (5th Cir. 1972); Running v. Ford Motor Co., 461 F. 2d 1145 (9th Cir. 1972); Luque v. McLean, 8 Cal. 3d 136, 501 P. 2d 1163, 104 Cal. Rptr. 443 (1972).Google Scholar

13 See, e.g., Rowland v. Christian, 69 Cal. 2d 108, 443 P. 2d 561, 70 Cal. Rptr. 97 (1968); Smith v. Arbaugh's Restaurant, Inc., 469 F. 2d 97 (D.C. Cir. 1972).Google Scholar

14 See, for intrafamily immunities, W. Prosser, Handbook of the Law of Torts (4th ed. St. Paul: West Publishing Co., 1971) 862–64, 867–68 [hereinafter cited as Prosser, Torts.]; and for charitable immunities, id. at 992–96.Google Scholar

15 The Massachusetts Statute Act of Aug. 13, 1970, ch. 670 [19701 Mass. Acts & Resolves 529, was held constitutional against a variety of objections in Pinnick v. Cleary, 360 Mass. 1, 271 N.E. 2d 592, 42 A.L.R.3d 194 (1971). For a convenient chart on the status of no-fault in the 50 states, see Robert E. Keeton, Compensation Systems and Utah's No-Fault Statute, 1973 Utah L. Rev. 383, 385. For an update to June 1974, see P. Keeton & Robert E. Keeton, Cases and Materials on the Law of Torts 156–57 (Supp. St. Paul: West Publishing Co., 1974).Google Scholar

16 See generally William C. Whitford, The Functions of Disclosure Regulation in Consumer Transactions, 1973 Wis. L. Rev. 400.Google Scholar

17 For a discussion of some of the disclosure problems under the security laws, with explicit comparisons to medical malpractice, see T. J. Fiflis, Current Problems of Accountants' Responsibilities to Third Parties, 28 Vand. L. Rev. 31, 66–67 (1975).Google Scholar

18 See generally Arnold J. Miller, The Contractual Liability of Physicians and Surgeons, 1953 Wash. U.L.Q. 413; Kevin Tierney, Contractual Aspects of Malpractice, 19 Wayne L. Rev. 1457 (1973). See also Annot. 43 A.L.R.3d 1221 (1972). The major issue discussed in these sources concerns cases in which a physician warrants a cure for a particular ailment. For a recent judicial statement of the problems in enforcing and interpreting such contracts, see Sullivan v. O'Connor, 296 N.E. 2d 183 (Mass. 1973).Google Scholar

19 See, e.g., Clark v. Gibbons, 66 Cal. 2d 399, 426 P. 2d 525, 58 Cal. Rptr. 125 (1967) (concurring opinion of Tobriner, J.); Helling v. Carey, 83 Wash. 2d 514, 519 P. 2d 981 (1974) (concurring opinion of Utter, J.). See generally Comment, Continuing the Common Law Response to the New Industrial State: The Extension of Enterprise Liability to Consumer Services, 22 U.C.L.A.L. Rev. 401, 423–30 (1974) [hereinafter cited as Comment, Enterprise Liability]; Note, Comparative Approaches to Liability for Medical Maloccurrences, 84 Yale L.J. 1141 (1975) [hereinafter cited as Note, Liability for Medical Maloccurrences]; see also O'Connell, Ending Insult to Injury, supra note 6, at 29–47, for O'Connell's argument that the insurance form of strict liability is desirable in malpractice cases.Google Scholar

20 See section III. B. 4. infra.Google Scholar

21 See generally Prosser, Torts, supra note 14, at 143–45, 161–66, for a convenient summary of the basic rules.Google Scholar

22 See Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928), where the principle of the duty of care expressed in terms of the “zone of danger” received its most famous elaboration.Google Scholar

23 There are, however, cases of this sort. See, e.g., Tarasoff v. Regents of University of California, 529 P. 2d 553, 118 Cal. Rptr. 129 (Sup. Ct. Cal. 1974), where it was held that a doctor or psychotherapist who treats a mentally disturbed patient is liable in tort if he does not use reasonable care to warn those whom the patient has threatened of possible dangers to their lives and safety.Google Scholar

24 See, e.g., McNevins v. Lowe, 40 III. 209 (1866); DuBois v. Decker, 130 N.Y. 325, 29 N.E. 313 (1891); Napier v. Greenzweig, 256 F. 196 (2d Cir. 1919).Google Scholar

25 Indeed the recent erosion of the locality rule-see, e.g., Brune v. Belinkoff, 354 Mass. 102, 235 N.E. 2d 793 (1968); Pederson v. Dumouchel, 72 Wash. 2d 73, 431 P. 2d 973 (1967)–can be read as a movement toward “status” concepts in the law of torts as well as a recognition of the increasingly national nature of medical practice. In another sense the importance of the locality rule lies not in the setting of the standard of care, but in the fact that it decreases the pool of doctors who are qualified to testify in each case. While national standards need not necessarily work to the advantage of either side, in practice it appears to help plain-tiffs more than defendants. The legislation proposed by St. Paul Fire and Marine Insurance Company that would limit expert witnesses to those “licensed to practice the profession practiced by the defendant doctor … in the state of the defendant doctor, or in a state contiguous to the defendant doctor's resident state” seems to bear this point out. Preserving Insurance Marketplace, supra note 1, at 9.Google Scholar

26 Special problems will arise, for example, where there are several schools of thought on a given point. The traditional approach allowed the physician to be judged by the standards of the school of which he was a part. See Prosser, Torts, supra note 14, at 163. That approach is consistent with the view that urges deference to physicians in cases of medical malpractice; and it is consistent with the view that the actual standard is consensually determined, as it is difficult to believe that one of the terms of an implied contract between physician and patient should require the physician to use the practices of another school of thought.Google Scholar

27 See materials cited note 11 supra Google Scholar

28 66 Cal. 2d 399, 417, 419; 426 P. 2d 525, 539, 539, 58 Cal. Rptr. 125, 138, 139 (1967) (Tobriner, J. concurring). It should be noted that the invitation to adopt strict liability in medical cases has been rejected in several lower court opinions; see Silverhart v. Mount Zion Hospital, 20 Cal. App. 3d 1022, 98 Cal. Rptr. 187, 54 A.L.R.3d 2501 (1971); Carmichael v. Reitz, 17 Cal. App. 3d 958, 95 Cal. Rptr. 381 (1971); Margrine v. Krasnica, 94 N.J. Super. 228, 227 A. 2d 539 (Hudson County Ct. 1967), aff'd sub nom. Margrine v. Spector, 100 N.J. Super. 223, 241 A. 2d 637 (Super. Ct. App. Div. 1968), aff'd 53 N.J. 259, 250 A. 2d 129 (1969).Google Scholar

29 This is the sense, for example, in which the phrase is used in Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). Causal language is also used in Restatement (Second) of Torts at sec. 402A, although the recent case law has tended to weaken the causal requirement by expanding the meaning of the phrase “defective conditions.” See, e.g., Cronin v. J. B. E. Olson Corp., 8 Cal. 3d 121, 501 P. 2d 1153, 104 Cal. Rptr. 433 (1972); Pike v. Frank G. Hough Co., 2 Cal. 3d 465, 467 P. 2d 229, 85 Cal. Rptr. 629 (1970).Google Scholar

30 For an early and perceptive account of the changes wrought by the workmen's compensation acts, see Jeremiah Smith, Sequel to Workmen's Compensation Acts, 27 Harv. L. Rev. 235, 344 (1914).Google Scholar

31 It was through the use of this defense of “inevitable accident” that strict liability was converted into the law of negligence. See, for the progression, Weaver v. Ward, Hob. 134, 80 Eng. Rep. 284 (1616); Stanley v. Powell [1891] 1 Q.B. 86 (1890); Fowler v. Lanning [1959] 1 Q.B. 426. The crucial American case is Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850). For a convenient summary of the development, see Harper & James, Torts, supra note 8, at 747–49.Google Scholar

32 Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Tort, 81 Yale L.J. 1055, 1060 (1972) (emphasis in original). For criticism, see Richard A. Posner, Strict Liability: A Comment, 2 J. Leg. Studies 205, 213–15 (1973).Google Scholar

33 See United States v. Carroll Towing Co., 159 F. 2d 169 (2d Cir. 1947). For a systematic elaboration and defense of the test in economic terms, see Richard A. Posner, A Theory of Negligence, 1 J. Leg. Studies 29 (1972).Google Scholar

34 For an elaboration and defense of this position, see Epstein, Strict Liability, supra note 7, at 160–89.Google Scholar

35 Id. at 189–204.Google Scholar

36 The use of tort doctrine to hold the physician liable in circumstances in which he has exercised reasonable care amounts in effect to an effort to circumvent the contract rule that physicians will not, in the absence of very strong proof, be taken to warrant the results of their treatment. See note 18 supra. But these decisions in the contract context are important only if they are dispositive, not merely of a particular plaintiff's theory, but of his entire case. Of what importance is the rule if every defective contract claim is a good tort claim? The decisions in the contract cases govern questions of substantive law, not merely details of the forms of action or the niceties of pleading.Google Scholar

37 See, e.g., Gregory v. Helvering, 293 U.S. 465 (1935).Google Scholar

38 As the malpractice question is not expressly discussed in their article, the argument here rests mainly on inferences drawn from their piece. But given their discussion of assumption of risk, especially as illustrated by the case of the patient harm by drugs with deleterious side effects, the argument in the text seems a fair statement of the implications of their position. Calabresi & Hirschoff, supra note 32, at 1064–67. In any event the Yale student Note on the subject adopts their framework as the basis for its discussion of strict liability for medical “maloccurrences.” Note, Liability for Medical Maloccurrences, supra note 19.Google Scholar

39 The point is made quite clear by the following passage.Google Scholar

“Enterprise liability” signifies a broadened concept of tort liability which is neither based upon a finding of fault nor limited to products. Enterprise liability dictates that a defendant be held liable for all harms associated with an activity upon proof of injury by the plaintiff, but subject to exculpation by defendant's proof of non-ordinary use. Traditional tort considerations such as assumption of the risk, proximate cause, unavoidably unsafe, and disclaimers of liability are abandoned as inconsistent with the social and economic policies underlying enterprise liability. Moreover, the oft-asserted requirement that a product be proven “defective” before recovery is granted under products liability is retained only to the extent consistent with the social policies underlying enterprise liability.Google Scholar

Comment, Enterprise Liability, supra note 19, at 403 n.8.Google Scholar

40 The statement in the text is subject to qualification where the medical services are rendered under emergency conditions and the patient is unable, perhaps because unconscious, to give consent. Here, of course, there is need for a law of quasi-contract to establish the incidents of this relationship. For the most part these are patterned on the customary incidents of contractual situations, there being no reason to displace them except perhaps on the question of the fees to be charged. See, e.g., Cotnam v. Wisdom, 83 Ark. 601, 104 S.W. 164 (1907), where the court refused to allow the plaintiff to price discriminate. In this type of situation, there is of course some need for direct social control. But there is no reason why the rules that govern emergencies should be extended to cases where the consensual arrangements exist, or why emergency cases should be treated as the starting point of any general analysis of medical malpractice.Google Scholar

41 I have expressed my views on the question of unconscionability generally in Richard A. Epstein, Unconscionability: A Critical Reappraisal, 18 J. Law & Econ. 293 (1975). For the general literature on the subject, much of which gives the doctrine wider sway, see John E. Murray, Contracts, a Revision of Grismore on Contracts 735–58, and sources cited at 741 nn.94 and 96, 742 n.99 (New York: Bobbs-Merrill Co., 1974).Google Scholar

42 Yet even here there is a good argument for their use. These clauses eliminate the abuse of suits alleging fraud or willful neglect even in cases where there is at most negligence and thus reduce the administrative costs incurred in defending nuisance suits. A clause of this sort was upheld, over dissent, in Danann Realty Corp. v. Harris, 5 N.Y. 2d 317, 157 N.E. 2d 597, 184 N.Y.S. 2d 599 (1959). Ironically, use of these clauses is encouraged by the usual rules on costs, including attorneys' fees, which do not allow the winner to take all.Google Scholar

43 The Duke Law School study on “defensive medicine” published in 1971 suggests that the threat of malpractice suits creates only a limited incentive for the practice of defensive medicine. Project, The Medical Malpractice Threat: A Study of Defensive Medicine, 1971 Duke L.J. 939, 964–65. Yet the sense today is that the practice is wider by far, perhaps in response to the sharp increase in malpractice suits since that study was completed. In any event, physicians have reported that they do practice defensive medicine, even where they believe it is to the detriment of their patients. See, e.g., Kotulak, supra note 1. Newsweek magazine suggests that the total cost could be from $3 to $7 billion annually, not including cases in which physicians, fearful of liability, covertly deny treatment that might save a patient's life. MD's Revolt, supra note 1, at 60.CrossRefGoogle Scholar

44 83 Wash. 2d 514, 519 P. 2d 981 (1974).Google Scholar

45 Note that it is quite easy to make up reasonable figures that indicate that the defendant's conduct was not negligent when measured by the classic Hand formula. See Note, Liability for Medical Maloccurrences, supra note 19, at 1147 n.38. And the formula suggests why it might be quite wise to distinguish between patients under and over 40. One real problem with the Hand test is that it makes the quantification of damages a prerequisite for determining liability. That damage figure is always arbitrary within a wide range, and the Hand formula therefore can in many cases be manipulated to allow any result by assigning a given dollar figure to the expected damages. The problem is, to use the phrase so often encountered in computer work: garbage in–garbage out. One virtue of a theory of strict liability in cases between strangers is that it allows the determination of liability to be made before the calculation of damages. The damage size (while still uncertain) is thus reduced in importance in that it applies only to the size, not the existence, of recovery. Sharp discontinuities brought about by all changes in inputs are thereby avoided. Likewise, reliance on custom in consensual cases again relieves the court of the troublesome task of applying the Hand formula where no real data are obtainable.Google Scholar

46 The T. J. Hooper, 60 F. 2d 737, 740 (2d Cir. 1932). The court in Helling v. Carey put the last sentence in italics. 83 Wash. 2d 514, 519; 519 P. 2d 981, 983 (1974).Google Scholar

47 The point is consistent with at least some economic approaches. See Richard A. Posner, Economic Analysis of Law sec. 4.4 (Boston: Little, Brown & Co., 1973). Indeed Posner notes the importance of the contractual relationship in the traditional willingness to allow custom as a defense in malpractice cases.Google Scholar

48 See Prosser, Torts, supra note 14, at 164–65. The two leading articles, both of which adopt this point of view, are: Allan H. McCoid, The Care Required of Medical Practitioners, 12 Vand. L. Rev. 549, 608 (1959) and Clarence Morris, Custom and Negligence, 42 Colum. L. Rev. 1147, 1164–65 (1942).Google Scholar

49 In these circumstances, there is a tendency for the rules to require more to be invested than the situation warrants and to have less compliance than is desired. But these hazards are common to all schemes of public regulation.Google Scholar

50 83 Wash. 2d 514, 520, 519 P. 2d 981, 984 (1974) (Utter, J., concurring).Google Scholar

51 In particular it tracks the argument for strict liability developed in Cornelius J. Peck, Negligence and Liability Without Fault in Tort Law, 46 Wash. L. Rev. 225 (1971), especially at 239–241.Google Scholar

52 See the account in Newsweek, April 7, 1975, at 49.Google Scholar

53 Miss Kalmowitz settled for $165,000. The jury was prepared to award $900,000 and was “stunned” when it learned of the settlement. “You shouldn't have done it,” one weeping male juror told her outside the courtroom. “Our hearts were with you all the way.”Id.Google Scholar

54 The case against the plaintiff in Kalmowitz was powerfully argued in a letter to News-week:Google Scholar

Your article about Gail Kalmowitz … is a classic example of the malpractice malaise threatening the health professions. Two physicians, practicing medicine according to the then current standards of care, preserve the life of a premature infant, who later becomes blind as a consequence of the high oxygen concentration that made her very survival possible. Twenty-two years later, the physicians are held retroactively accountable to a different and changing standard.Google Scholar

When it was discovered that the eyes of some infants were more sensitive than others to high oxygen concentrations, there was a concerted effort to lower oxygen concentrations in incubators to what were then considered less toxic levels. Predictably, there was a drop in the incidence of retrolental fibroplasia. Ironically, however, recent evidence in the United States, England and elsewhere now indicates that lowering oxygen concentration to prevent the rare occurrence of blindness has been accomplished at the cost of an increase in mental retardation of oxygen-deprived premature infants. It could be argued that Miss Kalmowitz might have grown up retarded instead of blind-had she in fact survived at all without the extra oxygen. This is a hard dilemma, but one we must face daily in our imperfect world. We can't have it both ways, and the burdens of choice are not eased by having to second-guess what interpretations will be placed on our actions by an emotion-charged jury twenty years after the fact.Google Scholar

Joseph Leaser, M.D., Hershey, Pa., Newsweek, May 12, 1975, at 4–6.Google Scholar

55 17 Cal. App. 3d 935, 95 Cal. Rptr. 381 (1971).Google Scholar

56 Endometriosis: “A condition in which tissue more or less perfectly resembling the uterine mucous membrane occurs aberrantly in various locations in the pelvic cavity.” Dorland's Illustrated Medical Dictionary (23d ed. Philadelphia: W. B. Saunders, 1961).Google Scholar

57 Thrombophlebitis: “A condition in which inflammation of the vein wall has preceded the formation of the thrombus.” Thrombus: “A plug or clot in a blood vessel or in one of the cavities of the heart, formed by coagulation of the blood, and remaining at the point of its formation.”Id.Google Scholar

58 Embolism: “The sudden blocking of an artery or vein by a clot or obstruction which has been brought to its place by the blood current.”Id.Google Scholar

59 17 Cal. App. 3d 958, 978, 95 Cal. Rptr. 381, 392. See also Gagne v. Bertran, 43 Cal. 2d 481, 275 P. 2d 15 (1954); Margrine v. Krasnica, 94 N.J. Super. 228, 227 A. 2d 539 (Hudson County Ct. 1967), aff'd sub nom. Margrine v. Spector, 100 N.J. Super. 223, 241 A. 2d 637 (Super. Ct. App. Div. 1968), aff'd, 53 N.J. 259, 250 A. 2d 129 (1969), both cited in the court's opinion.Google Scholar

60 See generally Marc A. Franklin, Tort Liability for Hepatitis: An Analysis and a Proposal, 24 Stan. L. Rev. 439 (1972) [hereinafter cited as Franklin, Hepatitis]; Reuben A. Kessel, Transfused Blood, Serum Hepatitis, and the Coase Theorem, 17 J. Law & Econ. 265 (1974) [hereinafter cited as Kessel, Transfused Blood].CrossRefGoogle Scholar

61 See Franklin, Hepatitis, supra note 60, at 456–74; Kessel, Transfused Blood, supra note 60, at 281–87. Franklin stops short of advocating strict liability for physicians (at 472–73), largely, it appears, because of the embarrassing search for “fault” and because of the litigation costs involved. Kessel, on the ground that the physician is “the better cost avoider,” argues for a rule of strict liability for physicians (at 281). In Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E. 2d 792 (1954), the New York Court of Appeals held that there was no warranty of fitness, thereby rejecting the strict liability standard, at least where the defendant was a nonprofit hospital. In Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d 443, 266 N.E. 2d 897 (1970), the Illinois Supreme Court applied the strict liability conception to actions against the defendant hospital. In Brody v. Overlook Hospital, 121 N.J. Super. 299, 296 A. 2d 668 (1972) the trial court applied the strict liability rationale to hospitals. That decision was reversed in the intermediate court on the ground that the blood was an “unavoidably unsafe product” and therefore not “unreasonably dangerous.” Brody v. Overlook Hospital, 127 N.J. Super. 331, 317 A. 2d 392 (1974). In its opinion the court criticized both the loss-spreading and efficiency arguments in favor of a strict liability standard. The New Jersey Supreme Court affirmed the judgment in the Appellate Court in a brief per curiam opinion. Brody v. Overlook Hospital, 66 N.J. 448, 332 A. 2d 596 (1975).Google Scholar

62 See Franklin, Hepatitis, supra note 60, at 466–67, where this incentive argument is made in discussing the liability of blood banks; Guido Calabresi & Kenneth C. Bass III, Right Approach, Wrong Implications: A Critique of McKean on Products Liability, 38 U. Chi. L. Rev. 74, 85–86 (1971).Google Scholar

63 For a list of the statutes, see 24 Vand. L. Rev. 645, 649–50 n. 26 (1971), updated in Franklin, Hepatitis, supra note 60, at 474–75 n. 203 (1972). These statutes fall into several major types. One kind by express words limits to negligence the liability of all persons involved in the distribution of blood, often on the ground that this limitation on liability is necessary to provide for “the health and welfare” of the people. See Ill. Rev. Stat. ch. 91 secs. 181–82 (Supp. 1975). In other cases, it is only declared that the provision of blood is a “service” and not a “sale.” See, e.g., N.Y. Public Health Law sec. 580 (McKinney Supp. 1974). Under current law this language achieves the same result as a declaration that strict liability will not apply for service transactions, which, unlike sales cases, have been traditionally governed by negligence rules. Thus sec. 402A of the Restatement (Second) of Torts, only applies to sales. If, of course, the logic of “enterprise liability” is extended to service transactions, those statutes could well be denied their intended effect.Google Scholar

As a variation on these two themes, Washington and Idaho have enacted statutes that provide for the application of strict liability rules only where blood is commercially purchased, but not otherwise. Idaho Code Title 39, ch. 37, sec. 39–3702 (Supp. 1975) Rev. Code Wash. Ann. sec. 70.54.120 (1975). Kessel, supra note 60, rightly notes that the Washington and Idaho statutes discriminate against commercial establishments and in favor of voluntary organizations such as the Red Cross. While I think that he is wrong in believing that strict liability for physicians is necessary or just, I think that he is quite right in asserting that the large power of voluntary organizations has distorted the operation of normal market forces and that better blood could be provided, even, it should be noted, under a regime of caveat emptor, if blood were treated as though it were just another good in commerce. Indeed, as the cost of transactions is quite low the market should move us to the optimum position. See Ronald H. Coase, The Problem of Social Cost, 3 J. Law & Econ. 1 (1960).Google Scholar

64 For a report of the recent developments by Abbott Laboratories, see Sydney Kofman, Hepatitis B: A Physician's Guide to the Disease and Its Associated Hepatitis B (Australia) Antigen (North Chicago, Ill.: Abbott Laboratories, 1975).Google Scholar

65 The leading case on the doctrine is Canterbury v. Spence, 464 F. 2d 772 (D.C. Cir. 1972). Other important recent cases are Cobbs v. Grant, 8 Cal. 3d 229, 502 P. 2d 1, 104 Cal. Rptr. 505 (1972); ZeBarth v. Swedish Hospital Medical Center, 81 Wash. 2d 12, 499 P. 2d 1 (1972). The first major case on the doctrine is Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093 (1960), clarified, 187 Kan. 186, 354 P. 2d 670 (1960).Google Scholar

66 “The root premise is the concept, fundamental in American jurisprudence, that '[e] very human being of adult years and sound mind has a right to determine what shall be done with his own body …“Canterbury v. Spence, 464 F. 2d 772, 780 (D.C. Cir. 1972), quoting Schloendorff v. Society of the New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914).Google Scholar

67 Canterbury v. Spence, 464 F. 2d 772, 782 n. 27 (D.C. Cir. 1972).Google Scholar

68 ZeBarth v. Swedish Hospital Medical Center, 81 Wash. 2d 12, 25, 499 P. 2d 1, 9 (1972).Google Scholar

69 Cobbs v. Grant, 8 Cal. 3d 229, 244, 502 P. 2d 1, 11, 104 Cal. Rptr. 505, 515 (1972).Google Scholar

70 Id. at 245, 502 P. 2d at 11, 104 Cal. Rptr. at 515. See also Canterbury v. Spence, 464 F. 2d at 786.Google Scholar

71 The court in Canterbury v. Spence, supra, 464 F. 2d 772, 784, bluntly observed:Google Scholar

“Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient's right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.” Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected.Google Scholar

Cobbs v. Grant, 8 Cal. 3d 229, 243, 502 P. 2d 1, 10, 104 Cal. Rptr. 505, 514 (1972). The Washington Supreme Court in ZeBarth showed greater deference toward the custom and practices of physicians within the community but noted as well that there are cases where the rules of treatment are so “manifest” that a layman “could reasonably find that the benefits from the proposed therapy would be so slight in relation to the gravity of the risks of harm from it that no medical testimony would be required to prove the duty to inform.” 81 Wash. 2d 12, 24, 499 P. 2d 1, 8–9 (1972). It is clear in the end that the differences in these views of the role of medical custom go only to degrees of judicial control. Deference is no part of the current law on informed consent.Google Scholar

72 The court in Canterbury v. Spence opts for the objective standard. 464 F. 2d 772, 790–91 (D.C. Cir. 1972). The use of objective standard undermines the initial premise of individual autonomy in that it allows the responses of the reasonable man to determine the rights of this patient, who is, ex bypotbesi, master of his own body. And that standard adds one more complication to an already overburdened cause of action. In most cases that complication will work against the plaintiff. But in principle it might be just possible for a passive plaintiff to argue that a reasonable patient would have regarded the information as material even though the plaintiff did not.Google Scholar

73 This causal complication is not addressed in either Cobbs v. Grant, 8 Cal. 3d 229, 502 P. 2d 1, 104 Cal. Rptr. 505 (1972) or Canterbury v. Spence, 464 F. 2d 772 (D.C. Cir. 1972). Indeed, the statement of facts in Canterbury v. Spence suggests that the point was ignored. “A youth troubled only by back pain submitted to an operation without being informed of a risk of paralysis incidental thereto …. Despite extensive medical care, he has never been what he was before.”Id. at 776.Google Scholar

74 If a defendant “succeeds in establishing that the plaintiff's pre-existing condition was bound to worsen, … an appropriate discount should be made for the damages that would have been suffered even in the absence of the defendant's negligence.” Evans v. S. J. Groves & Sons Co., 315 F. 2d 335, 348 (2d Cir. 1963). That proposition applies in cases where individuals with a tendency to psychological disorders suffer grave psychological harm after an automobile accident. See, e.g., Steinhauser v. Hertz Corp., 421 F. 2d 1169 (2d Cir. 1970). A fortiori it must apply to cases where patients suffer from serious illnesses.Google Scholar

75 Canterbury v. Spence, 464 F. 2d 772, 789 (D.C. Cir. 1972).Google Scholar

76 Id. at 772.Google Scholar

77 Id. at 777.Google Scholar

78 The problem here is not unlike that found in the application of the test of reasonable foresight on the question of remoteness of damages in ordinary accident cases. See Clarence Morris, Morris on Torts 174–77 (Mineola, N.Y.: Foundation Press, 1953). With the foresight rule the crucial determination must be made before that rule is applied: which description of many possible descriptions will be used in order to retell the occurrence. If the events are described with great particularity, it is difficult to argue that they were foreseeable consequences of the defendant's act. If they are described in more general terms, the foreseeability test is more easily satisfied. As there is no single test that tells us which of many “ordinary” descriptions is proper, the foresight formula in itself is insufficient to determine the outcome in any particular case.Google Scholar

The same problem arises in informed consent cases. In one sense it is arguable that Dr. Spence discharged his obligation by telling the plaintiff and his mother that the operation was no more serious than any other operation, on the ground that it is common knowledge that paralysis is always a possibility when dealing with the spinal cord so that there is no need to make particular mention of it. There is little doubt that the defendant would lose on this point. See, e.g., Bowers v. Talmage, 159 So. 2d 888 (Fla. Dist. Ct. App. 1963). Yet the moment we ask about what particular risks he must mention and explain and which risks he may lump together under some ordinary description of hazards, the rule requires elaborate legal judgments difficult to make on the strength of the decided cases.Google Scholar

79 Preliminarily we employ several postulates. The first is that patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity. The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment. The third is that the patient's consent to treatment, to be effective, must be an informed consent. And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions.Google Scholar

From the foregoing axiomatic ingredients emerges a necessity, and a resultant requirement, for divulgence by the physician to his patient of all information relevant to a meaningful decisional process.Google Scholar

Cobbs v. Grant, 8 Cal. 3d 229, 242, 502 P. 2d 1, 9–10, 104 Cal. Rptr. 505, 513 (1972).Google Scholar

80 The argument in the text loses some of its force if parties can contract out of the rule. The position on waiver, however, is not altogether clear. The court in Canterbury v. Spence contains no considered discussion of the question, although the tenor of the opinion suggests that it is hostile to the notion. See, e.g., 464 F. 2d 772, 783 n.36 (D.C. Cir. 1972). The court in Cobbs v. Grant appears to allow waiver where the patient requests that he not be informed, but does not specify what must be done in order to insure that a waiver will bind in a particular case. 8 Cal. 3d 229, 245, 502 P. 2d 1, 12, 104 Cal. Rptr. 505, 516 (1972). The court also cites Donald G. Hagman, The Medical Patient's Right to Know: Report on a Medical-Legal-Ethical, Empirical Study, 17 U.C.L.A.L. Rev. 758, 785–90 (1970), which is inconclusive on the question.Google Scholar

The waiver point is of course of great importance. If waivers were fully and freely allowed, then the entire edifice of informed consent would fall into general disuse as waivers became commonplace. In that happy event, the chief criticism of the entire law of informed consent would be only that the doctrine specifies a set of terms on the issue of disclosure that do not correspond to the general desires of either physicians or patients and therefore necessitates costly and uncertain transactions to reach the desired position. Yet in the current climate it seems much more likely that waivers will be very hard to establish, as it is difficult to believe that courts that do not accept the custom of the medical profession as decisive on the standard of disclosure will reverse their position when that custom is embodied in a contract, which could be dismissed in any event as unconscionable or adhesive. In that event the doctrine would, as it has already been noted, work an even greater disservice as it would systematically prevent physicians and patients from reaching the optimum position by private transactions. This last possibility is by far the more likely one, and the criticisms of the doctrine of informed consent in the test proceed on the assumption that waivers will only in rare cases defeat the application of the informed consent doctrine.Google Scholar

81 Thus, it is on precisely these grounds that the court in Canterbury v. Spence rejects “the thought that the patient should ask for the information before the physician is required to disclose …. The patient may be ignorant, confused, overawed by the physician or frightened by the hospital, or even ashamed to inquire.” 464 F. 2d 772, 783 n.36 (D.C. Cir. 1972).Google Scholar

82 See, e.g., Ind. Code Title 16, art. 9.5, ch. 2 (enacted in Act of April 17, 1975, 31 [1975] New Laws 283, 285–86). That statute provides that an individual physician shall be liable only for $100,000 in damages in a malpractice action, and that any individual patient can recover only $500,000, with the last $400,000 coming from a patient's compensation fund established by the act. The statute has been criticized on equal protection grounds, the theory being that medical malpractice actions cannot be isolated from the rest of the tort law. Yet, even though the statute is unsound, it is doubtful that its defects assume constitutional dimensions. There are, as indicated throughout this paper, good doctrinal reasons for distinguishing malpractice cases from automobile accidents, and it is quite clear that the practical problems of administration, surely an important point in passing on legislative discretion, are dramatically different. No-fault automobile plans are not unconstitutional even though they do not apply to medicine, and likewise the Indiana statute is not unconstitutional because it does not apply to automobiles. With broad institutional reforms, great caution must be observed before classifications are branded as unreasonable. We must as a constitutional matter learn to suffer limitations of freedom of contract. If we can countenance the minimum wage, we can countenance this statute.Google Scholar

83 In California, e.g., 13 of the 14 $1 million plus verdicts reported as of June 1975 came in the previous 28 months. The largest, for $4 million, was affirmed by the California Appellate Court in Niles v. City of San Rafael, 42 Cal. App. 3d 230, 116 Cal. Rptr. 733 (1974).Google Scholar

84 For a discussion of the differences between claims-made and occurrence policies, see note 5 supra. Note, too, that statutes of limitation will be drastically reduced to deal with the long-tail problem under the occurrence policy. That solution is acceptable to the extent that it does not allow infants to wait till they are of full age before they sue; that obligation would be imposed upon guardians. Yet where the restriction is imposed by legislation, it would imply that those who discover their harm after the statute has run could be deprived of all remedy. The choices involved in setting the statute are difficult to make; again I should like to see the explicit contractual solution, wherever possible.Google Scholar

85 Note that the point in the text does not bear on the question whether as a matter of general tort theory a plaintiff should receive compensation for pain and suffering. For the case in favor of abolishing this head of damages in tort law see, e.g., Cornelius J. Peck, Compensation for Pain: A Reappraisal in Light of New Medical Evidence, 72 Mich. L. Rev. 1355 (1974). I do not think that the case is convincing. No matter how difficult it is to evaluate pain and suffering it is quite clear that they are some sort of a cost, and in many cases a very substantial one. It is one thing to say that people may waive recovery in contract for that element of damages and quite another to say that the tort law should ignore it entirely, even in suits between strangers to which contract principles are inapplicable.Google Scholar

86 The problem of double recovery is high on the list of grievances of insurance companies and physicians. California Assembly, Select Committee on Medical Malpractice, Preliminary Re-port, June 1974, p. 33.Google Scholar

87 See, e.g., Roto-Lith, Ltd. v. F. P. Bartlett & Co., 297 F. 2d 497 (1st Cir. 1962); Construction Aggregates Corp. v. Hewitt-Robins, Inc., 404 F. 2d 505 (7th Cir. 1968).Google Scholar

88 The approach in the text cannot, of course, apply to emergency cases where no consent is possible. In those situations some statutory solution is necessary, although it is quite unclear which solution is most desirable. My current preference is for a statutory maximum that approximates, or somewhat exceeds, the amount of coverage that individuals who do contract choose to take for their own benefit, a figure no doubt quite difficult to determine. Whatever the eventual solution to the emergency problems, the difficulties in this narrow class of cases show the preferability of a consensual determination. Here as elsewhere the emergency case should not be allowed to control the general discussion of malpractice problems. See note 40 supra.Google Scholar

89 See, e.g., HEW Report on Malpractice, supra note 6, at 32–35, for a convenient summary of the current system and the criticisms of it.Google Scholar

90 Id. at 35.Google Scholar

91 Id. at 34–35. The New Jersey rule provides that the lawyer get a maximum of 50 percent of the first $1,000 recovered, 40 percent of the next $2,000, 33 1/3 percent of the next $47,000, 20 percent of the next $50,000, and 10 percent of anything over $100,000.Google Scholar

92 See Werner Pfennigstorf, Legal Expense Insurance: The European Experience in Financing Legal Services 31–35 (Chicago: American Bar Foundation, 1975).Google Scholar

93 Indeed there is good theoretical reason to believe that the contingent fee may create an incentive for lawyers to underinvest in cases. Thus, if at the margin one extra hour of work will yield $100 more in benefits, that hour will be done if the lawyer is paid a fixed fee of less than $100 per hour. If, however, he is on a one-third contingent fee he may well not put in that hour if the alternative uses of his time are worth more than $33.33, even though it is in the interest of his clients to do so. See Murray L. Schwartz & Daniel J. B. Mitchell, An Economic Analysis of the Contingent Fee in Personal-Injury Litigation, 22 Stan. L. Rev. 1125 (1970). Note that the analysis is more complicated if we try to take into account any good faith or moral obligation that lawyers may have or feel toward their clients, and more complicated still if lawyers act out the fallacy of “sunk costs” and allow their past involvement with the case to determine their level of future work, which may be the case when they have a psychological stake in the outcome of the case.Google Scholar

94 See HEW Report on Malpractice, supra note 6, at 33. Its figure is $63 per hour as against a standard of $50 for defense lawyers.Google Scholar

95 See, for references, Special Committee on Prepaid Legal Services, Revised Handbook on Prepaid Legal Services (2d ed. Chicago: American Bar Association, 1972).Google Scholar

96 For a thoughtful examination of the entire question, see Philip J. Mause, Winner Takes All: A Re-examination of the Indemnity System, 55 Iowa L. Rev. 26 (1969).Google Scholar

97 The HEW Report on Malpractice, supra note 6, at 10, reports that for the year 1970, 16,000 were resolved. The study then proceeds to break down the decided cases into subcategories. Of the total, 50 percent were resolved without a claim being filed; of this category, plaintiffs received compensation in 25 percent of the suits, or about 121/2% percent of the total. Thirty percent of the cases were resolved after a claim was filed but before trial; of these cases, plaintiffs received some compensation in 60 percent of the suits, or about 18 percent of the total. Twenty percent of the suits were to trial; in them, only 20 percent of the plaintiffs received compensation, or about 4 percent of the total. To make estimates of the willingness of plaintiffs to bring suits under winner-take-all, it is necessary to know a great deal about the composition of all these subgroups, particularly with respect to the size of claim. But if plain-tiffs now have a less than 50 percent recovery probability overall and if large cases tend to go to trial, then it is quite likely that the total number of suits will decrease even if some form of contingent fee is retained.Google Scholar

98 On screening panels, see generally HEW Report on Medical Malpractice, supra note 6, at 91. For an exhaustive account, see G. Bruce Baird, G. Thomas Munsterman & Julian P. Stevens, Alternatives to Litigation, I: Technical Analysis, in id. Appendix at 214.Google Scholar

99 See, e.g., Ind. Code Title 16, art. 9.5, ch. 9 sec. 2 (enacted in Act of April 17, 1975, sec. 1 [19751 New Laws 283, 293) [hereinafter cited as Ind. Code Title 16, art. 9.5, ch. 91; Act of April 30, 1975, sec. 8 [19751 New Laws ch. 302, at 273, 275 (Nev. 1975).Google Scholar

100 Ind. Code Title 16, art. 9.5, ch. 9, supra note 99, at secs. 4–7.Google Scholar

101 It is admissible in Indiana, but it is not conclusive, and either party on his own can call a member of the panel as a witness. Ind. Code Title 16, art. 9.5, ch. 9, supra note 99, at sec. 9.Google Scholar

102 Act of April 30, 1975, sec. 11 [1975] New Laws ch. 302, at 273, 275 (Nev. 1975).CrossRefGoogle Scholar

103 The consideration for services rendered can be below market levels. Thus Indiana law authorizes only a $25 per diem with a maximum of $250 for participation of the panel. Here we can expect that many physicians might try to show cause why they should be excused from service on account of undue hardship. Ind. Code Title 16, art. 9.5, ch. 9, supra note 94, sec. 10.Google Scholar

104 See, for an exhaustive account, Stanley D. Henderson, Alternatives to Litigation, III: Contractual Problems in the Enforcement of Agreements to Arbitrate Medical Malpractice, in HEW Report on Malpractice, supra note 6, Appendix at 321.Google Scholar

105 Id. at 336–37. See also Doyle v. Giuliucci, 62 Cal. 2d 606, 401 P. 2d 1, 43 Cal. Rptr. 697 (1965), where the California Supreme Court upheld such a contractual arbitration clause contained in a standard form contract for medical services. The court did not, however, deal with the adhesion question.Google Scholar

106 See David S. Rubsamen, The Experience of Binding Arbitration in the Ross-Loos Medical Group, HEW Report on Malpractice, supra note 6, Appendix at 424. In general, large groups should be able to deal with patient grievances more expeditiously than individual physicians. The size of groups allows specialists to handle grievances, and where malpractice has occurred the group may well be able to settle the matter itself by providing through its own facilities the treatment that the patient needs.Google Scholar

107 Prosser, Torts, supra note 14, at 214.Google Scholar

108 See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486, 154 P. 2d 687 (1944), where it was held that res ipsa loquitur could be applied against six defendants who participated in an appendectomy, even though four of them were independent contractors not responsible for each other's actions. At the subsequent trial the defendants testified that they knew of no improper treatment, but judgment for the plaintiff was affirmed on appeal, even though the plaintiff introduced no direct evidence on his own behalf. Ybarra v. Spangard, 93 Cal. App. 2d 43, 208 P. 2d 445 (1949).Google Scholar

109 81 Wash. 2d 12, 499 P. 2d 1 (1972).CrossRefGoogle Scholar

110 Id. at 22, 499 P. 2d at 8. There was also expert testimony for the plaintiff, which is not of concern here, though not of a very persuasive sort.Google Scholar

111 3 Cal. 3d 780, 478 P. 2d 480, 91 Cal. Rptr. 760 (1970).Google Scholar

112 The situation in Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (Ex. 1863), the case in which Baron Pollock uttered the fatal words.Google Scholar

113 See p. 99 supra.Google Scholar

114 Act of April 30, 1975, sec. 1 [1975] New Laws ch. 299, at 289 (Nev. 1975) amending Nev. Rev. Stat. ch. 41.Google Scholar

115 The bills are S. 215, 94th Cong., 1st Sess. (1975), and H.R. 4881, 94th Cong., 1st Sess. (1975). The provisions of the bills that are not essential to their operation provide, first, that physicians covered by the plan cannot charge patients covered by Medicare fees in excess of the amounts allowable under that program, sec. 1704(c)(2) (both bills have the same section numbering); and, second, that certain surgeries can only be performed after proper consultations are made, sec. 1704(3). The licensure and review requirements (sec. 1704) are in my view an important component of the scheme. If no-fault is introduced at the state level, there need not be any question of coordinating state and federal standards.Google Scholar

116 Sec. 1721(5) provides the definition in the text. Sec. 1701(c) uses that definition to define the scope of the coverage.Google Scholar

117 Sec. 1717 requires waiver of the tort action. Sec. 1713 sets the benefit schedules. Sec. 1714 requires the monthly payment as the losses occur.Google Scholar

118 Sec. 1701(b). The language making the participation in the plan voluntary is not as clear as it might be.Google Scholar

119 Sec. 1708.Google Scholar

120 Secs. 1704 and 1705.Google Scholar

121 See statements by Senators Inouye and Kennedy in support of S. 215, reprinted in Overview, supra note 1, at 100–110.Google Scholar

122 Senators Inouye and Kennedy are aware of the problem, if not its dimensions. Id. at 106. See for more complete discussions Robert E. Keeton, Compensation for Medical Accidents, 121 U. Pa. L. Rev. 590 (1973); Note, Liability for Medical Maloccurrences, supra note 19. The title of the Yale Note suggests the awkwardness of the word “accident” in this context.CrossRefGoogle Scholar

123 See, e.g., Robert E. Keeton & Jeffrey O'Connell, Basic Protection for the Traffic Victim (Boston: Little, Brown & Co., 1965) at 303 for sec. 1.4 of their Motor Vehicle Basic Protection Insurance Act and at 392–94 for their commentary thereon.Google Scholar

124 See, e.g., Fuller v. Preis, 35 N.Y. 2d 425, 322 N.E. 2d 263, 363 N.Y.S. 2d 568 (1974); Exxon Corp. v. Breheen, 519 S.W. 2d 170 (Tex. Civ. App. 1975). In each case the plaintiff was allowed to go to the jury on the question of whether the decedent's suicide was causally related to an accident for which the defendant was admittedly responsible. And note the extensive psychological testimony that it is both possible and necessary to bring to bear on the question.Google Scholar

125 There is, moreover, a second question on compensable events that can arise here as well, one of a jurisdictional and not a causal nature. For example, does an accident arise out of the course of employment if an employee is hurt while on his way to work, or while on a midday stroll off the premises during a coffee break? It is possible that questions of this sort might crop up in a medical no-fault scheme as well.Google Scholar

126 83 Wash. 2d 514, 519 P. 2d 981 (1974).Google Scholar

127 17 Cal. App. 3d 958, 95 Cal. Rptr. 381 (1971).Google Scholar

128 464 F. 2d 772 (D.C. Cir. 1972).Google Scholar

129 81 Wash. 2d 12, 499 P. 2d 1 (1972).CrossRefGoogle Scholar

130 Thus if A runs, only to fall and hurt himself, while running away from his attacker B, B's compulsion is given causal priority over A's running, even though both caused the harm. A of course would be causally responsible for his own hurt, if he had not run in response to B's threat.Google Scholar

131 S. 215 and H.R. 4881, sec. 1705(b), c(1).Google Scholar

132 Id.Google Scholar

(2) In the event that any insured fails to inform such patient within thirty days after he knew or reasonably should have known of such injury and such patient does not file a claim for no-fault benefits within the period required by section 1716, because he has not been so informed, such insured shall be liable to compensate such patient in an amount equal to the amount such patient would have been entitled to recover if he had filed a timely claim.Google Scholar